Reporters Committee prevails in Missouri execution drug secrecy case

A circuit court in Missouri has ruled that the state Department of Corrections cannot withhold information about the pharmacies and laboratories that compound, test, and supply the drugs that the state uses to carry out executions.

The ruling is a rare legal victory for the public’s right to know details about the sources of such drugs amid widespread concerns over the legality of how they are obtained.

“The public has a compelling interest and a clear right to know how their government is carrying out executions,” said Katie Townsend, Litigation Director for the Reporters Committee for Freedom of the Press. “This ruling vindicates that right, and is an important win for the people of Missouri and the rest of the United States.”

The Reporters Committee, along with the ACLU of Missouri and Chris McDaniel, a reporter formerly at St. Louis Public Radio and now at Buzzfeed, are joint plaintiffs in the case that was brought under the Missouri Sunshine Law.

The primary issue in the case was whether Missouri officials have the legal authority to unilaterally designate the pharmacies and labs that test and supply its execution drugs as “persons” that were part of its “execution team,” and therefore shield their identities from the public.

Yesterday, Judge Jon Beetam ruled that they could not, holding that Missouri law “does not…empower the DOC to define the execution team as it wishes, without limitation.”

He held that the department’s failure to turn over the records requested by the Reporters Committee and the other plaintiffs amounted to a “violation of the Sunshine Law … that was knowingly done.”

The court’s ruling states that the law only limits public access to information about persons whom the legislature specifically stated were off-limits: “persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals.”

Labs and pharmacies, the opinion states, are not persons and therefore cannot hide from the public.

Furthermore, neither the labs and pharmacies, nor their employees, provide direct support for the administration of the drugs because, unlike medical personnel who are present in the execution chamber, they do not participate in executions.

To hold otherwise, the court explained, would lead to unreasonable results. Under such logic, the department could “add any number of private entities with whom the DOC contracts — such as the manufacturer and supplier of syringes and gurneys used during executions — to the execution team.”

Significant questions have been raised about the sources and quality of drugs used in executions in the United States. Chris McDaniel, a plaintiff in the case along with the Reporters Committee, recently reported that multiple states have or have attempted to illegally import sodium thiopental from India. The FDA has stated that it will seize any such shipments.

Some states have turned to compounding pharmacies—which are subject to little regulation or oversight—to obtain execution drugs. Missouri may be one such state.

On July 9, 2015, two former members of the Missouri legislature, a Baptist minister and a Catholic nun, filed a lawsuit against the State, alleging it is violating FDA regulations in how it obtains its execution drugs. According to the lawsuit, compounding pharmacies can’t legally make or sell such drugs without a valid prescription.