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After death, new scrutiny for lethal injection

After a brief stay, a Missouri inmate was executed. The legal arguments leading up to his death are part of a growing movement against lethal injection.
The lethal injection chamber of the South Dakota State Penitentiary is seen on Oct. 9, 2012.
The lethal injection chamber of the South Dakota State Penitentiary is seen on Oct. 9, 2012.

With just hours before Herbert Smulls was scheduled to die by lethal injection in a Missouri prison early on Wednesday morning, the U.S. Supreme Court granted the convicted killer a temporary stay of execution.

That order was lifted less than 24-hours later, and by 10:20 p.m.on Wednesdy evening, Smulls was dead. The condemned man showed no signs of distress during the execution, the AP reported. 

But his short reprieve from the death chamber, and ultimately his death, may have strenghtened a growing movement by death row inmates and their advocates who are calling for states to be more transparent about the lethal drug combinations used in executions.

Smulls’ lawyer had filed a last-minute appeal to halt the execution, focusing on the state’s refusal to disclose which compounding pharmacy provided the pentobarbital, a controversial lethal injection drug which prison officials planned on using to kill him.

Typically, compounding pharmacies customize medications to suit individual customers’ specific needs. But some have expanded to providing prisons with death drugs.  

Across the country, the condemned and their lawyers are filing appeals that have risen to the highest courts, as a scarcity of lethal injection drugs from federally regulated pharmacies has states turning to the shadowy world of compounding pharmacies, which fall under the purview of states rather than the Federal Drug Administration. All death penalty states now use lethal injection. States including Louisiana, Missouri, Oklahoma, and Texas have turned to compounding pharmacies.

The relationships between the states and the pharmacies have been shrouded in secrecy, and corrections departments have gone to great lengths to protect the identities of their drug suppliers. In some states, as is the case in Missouri, the pharmacies are legally shielded from public disclosure and are extended the privilege of anonymity afforded members of the official execution team.

“We believe that we have presented some pretty compelling issues about Missouri’s execution protocol, particularly as it relates to the use of a compounded drug from an unknown source tested by an unknown laboratory in an industry that is largely unregulated, and where historically there has been very lax oversight coupled with very high profitability,” Cheryl Pilate, Smulls’ attorney, told msnbc before the execution. “That’s a bad combination.”

Witnesses to a number of recent high-profile executions by lethal injection have reportedly watched and listened as the inmates gurgled, gasped and in one execution in Oklahoma this month, uttered the last words, “I feel my whole body burning.”

In another incident, on Jan. 16, it took nearly 25 minutes for death row inmate Dennis McGuire to die, including 10 minutes of gasping and struggling, after he was injected with a combination of drugs never before used in a US execution. McGuire's family said they planned to file suit, saying his prolonged death violated the Constitution's prohibition on cruel and unusual punishment.  

The highly publicized accounts have spurred advocates for death row inmates to press harder on courts and states to examine the use of drugs that may lead to inhumane deaths.

Pilate said the secrecy surrounding the procurement process makes it difficult to determine the quality of the drugs being used and whether or not they could cause pain and suffering during execution.

(In a 2012 case unrelated to lethal injection drugs, tainted steroids from a compound pharmacy in Massachusetts caused 751 people in 20 states to develop fungal meningitis and other infections, 64 of whom died.)

Some advocates for condemned prisoners have protested the use of experimental or never-before-used combinations of drugs in executions.

With the scrutiny of lethal injection growing, some state lawmakers are considering going back to other methods of execution.

Earlier this month, Missouri state Rep. Rick Brattin proposed making firing squads an option for executions. At least one fellow Missouri lawmaker has tossed around the idea of erecting gas chambers.

“This isn’t an attempt to time-warp back into the 1850s or the wild, wild West or anything like that,” Brattin told the Associated Press. “It’s just that I foresee a problem, and I’m trying to come up with a solution that will be the most humane yet most economical for our state.”

Lawmakers in Wyoming have introduced a bill that would also allow the firing squad as a means of death. In Virginia, lawmakers are considering returning to death by electrocution if lethal injection drugs aren’t available.

The controversy over lethal injection has been brewing since it first was used in the United States 32 years ago in Texas.

Since then the Supreme Court has done little to clarify the chaotic implementation of the procedure.

Deborah Denno, a professor at Fordham University School of Law, said it’s not just the shadowy manner in which lethal injection drugs are produced and acquired that is troubling: states are becoming more aggressive in experimenting with largely untested combinations of drugs.

“There’s been a relative surge in momentum around this issue over the past few months because of all the experimenting with different drugs and states being riskier with different kinds of drugs and the speed at which they are changing drugs,” Denno said. “But this is just a variation on a decades-long running theme.”

In a soon-to-be published article for the Georgetown Law Journal, Denno writes that as death penalty states turn to new sources for drugs (and face public criticism and legal challenges), they have intensified their efforts to obscure information about the development and implementation of their execution protocols.

One thing that has been constant is “states’ desire for secrecy regarding execution practices,” Denno wrote.

“Amidst the chaos of drug shortages, changing protocols, legal challenges and botched executions, states are unwavering in their desire to conceal this disturbing reality from the public.”

Pilate said that she was able to use public records and open-records laws to identify the likely supplier of the drug the state planned to use to execute Smulls as The Apothecary Shoppe based in Tulsa, OK.

In a statement to the Associated Press, The Apothecary Shoppe owner DJ Lees neither confirmed nor denied that it makes lethal injection drugs for Missouri.

Shortly after Pilate discovered the company’s connection to the Missouri department of corrections, she said she heard from an attorney in Louisiana who is representing a death row inmate in another high-profile case in that state.

According to a report in the Lens, a New Orleans-based investigative news operation, prison officials in Louisiana may have tried to illegally purchase drugs for an upcoming execution from The Apothecary Shoppe. The Apothecary Shop is not listed on Louisiana’s pharmacy board’s online database of suppliers licensed to provide pentobarbital to any pharmacy in Louisiana. That would make the sale of the drug to the state prison pharmacy illegal.

Lawyers for Christopher Sepulvado, the death row inmate in Louisiana, uncovered a series of emails, later published on, between Lees and prison officials discussing the sale of drugs, in which Lees asked the state to sign a non-disclosure agreement. 

DJ Lees denied toThe Guardian  any involvement with prison services in any state. “We do prepare compounded medication, but not in this case. You have got the wrong pharmacy,” he said.

Still, an extensive report recently by St. Louis public radio determined that The Apothecary Shoppe was likely the supplier of the pentobarbital, a drug typically used to euthanize animals, to put Smulls to death.


Hours after Justice Samuel Alito signed the order granting Smulls a stay of execution late on Tuesday night, Cheryl Pilate and a team of attorneys and advocates gathered in Kansas City, about 300 miles from the Eastern Reception Diagnostic and Correctional Center in Bonne Terre, MO., where Smulls remained in a holding cell pending word on his fate.

“We are his family,” Pilate said of Smulls, who was 56 and whom she’s represented for 12 years. “We have been his support system. We have been on the phone with him all day, every day for the last couple of days. It has been very emotional.”

Smulls had no relatives or close family in any position to support him, Pilate said, just an ailing 93-year-old grandmother to whom he spoke daily.

As the team was busy filing last-ditch appeals, they were also been busy making burial arrangements.

“There’s no one else to turn his body over to,” Pilate said.  “We’re making arrangements so he can have the kind of burial he wants if an execution transpires. But we’re hoping that doesn’t transpire. We’re fighting like hell.”

Smulls was born impoverished to a 15-year-old mother, Pilate said. As a toddler, he was “handed off” twice to different families and later, raised in a violent neighborhood. 

In 1991, Smulls and a teenage accomplice set out to rob a St. Louis County jeweler. At some point, things turned deadly. The jeweler was shot and killed and his wife was badly injured. The 15-year-old accomplice was sentence to life without parole; Smulls, to death. 

Pilate, Smulls’ lawyer, described the episode as “an awful mistake on a day in his life that in many ways was not consistent with the rest of his life.” She described him as well-liked by his guards.

She said Smulls feared dying by lethal injection.

Over the last couple of days she had several very emotional conversations with Smulls, the kind you “have toward the end of life, a kind of hospice.”

“There’s been a lot of looking back and talking about feelings and saying Thank Yous and expressing gratitude,” Pilate said. "So its been a very difficult and emotional time. And I’d be lying if I said I haven’t cried. I’ve cried several times.”

Last week, Smulls’s attorneys filed a motion for a 60-day stay of execution, calling the state’s execution method unconstitutional, including the use of a “substandard compounded drug.”

Gov. Jay Nixon denied Smulls’ request for clemency, called him a career criminal whose crime was “cold-blooded and deliberate.”

On Wednesday evening, the U.S. Supreme Court removed its temporary order blocking Smulls’s execution. And the state of Missouri was free to put him to death.