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Federal Judges Rule Execution Drug Supplier Can Be Secret, But Documents Point To Likely Identity

(via Wikimedia Commons/California Department of Corrections)

Late Friday night, a group of federal judges found that the compounding pharmacy making Missouri's execution drug can remain secret, but new emails point to one pharmacy as the likely supplier.

As we revealed in last month's investigation, we narrowed the possible suppliers down to three pharmacies that could be supplying the execution drug to Missouri; none were licensed to do business in this state. Emails published Saturday by the Louisiana-based investigative outlet the Lens show that the Apothecary Shoppe in Oklahoma has apparently offered to supply execution drugs to other states.

The Apothecary Shoppe was one of the three pharmacies that we were looking at last month. When we called the pharmacy in December, employees refused to answer our questions.

Emails between the Apothecary Shoppe and the Louisiana Department of Corrections obtained by the Lens.

The Apothecary Shoppe is not licensed in Missouri or in Louisiana.

Missouri Attorney General Chris Koster's office has long argued that the supplier must be kept confidential. If the pharmacy's name got out, it says, the company wouldn't want to supply for executions any longer. The Department of Corrections named the pharmacy to its "execution team," which is kept secret.

A federal judge ruled the pharmacy can't be a member of the execution team and ordered the state to disclose the identity to two members of the inmate's legal team. But on Friday, a higher court disagreed with her order.

Because the inmates challenging the execution protocol didn't make a valid case, "the identities of the prescribing physician, pharmacist and laboratory are plainly not relevant," the Eighth Circuit Court of Appeals wrote.

The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed.

The state has offered reassurances that the drug is pure and potent by having a testing lab examine it. However, the testing lab is a controversial one. Analytical Research Laboratories (ARL),  in Oklahoma City, OK, approved a batch of steroids for commercial use that ended up killing dozens in 2012. The deaths sparked debate over the regulatory practices for compounding pharmacies, which aren't regulated by the Food and Drug Administration like drug manufacturers are.

The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it.

Missouri has not argued that the testing laboratory is a member of the execution team but instead has tried to keep it confidential by labeling it a "state secret," which is normally used for matters of national security. The state took issue with the inmate's lawyers criticizing and naming ARL in a court filing on Friday, and the lawyers had to take down the filing and replace it with redactions. St. Louis Public Radio and the Beacon downloaded the filings while they were still up, however.

Read the filing below or click "Notes" for the important parts.

On Friday, the Eighth Circuit wrote that the death row inmate's lawyers don't just have to prove that the state's method of execution has a high risk of severe pain -- but that they also must show it's a high risk when compared to available alternatives.

"Our analysis must begin with a basic proposition: '[C]apital punishment is constitutional. It necessarily follows that there must be a means of carrying it out,'” the Eighth Circuit wrote.

That could prove to be a difficult task for the inmates' lawyers, as there aren't many choices left. In fact, that's the reason states like Missouri turned to compounding pharmacies for execution drugs: Virtually no manufacturer wants its drugs to be used for lethal injections.

In a dissent, three Eighth Circuit judges disagreed that the inmates' lawyers should have to find an alternative method of execution, and said it places "an absurd burden on death row inmates" and is "unreasonable."

They also took issue with the state's claim that the compounding pharmacy is a member of the execution team.

"The execution team must be defined more narrowly than suggested by the Director [of the Department of Corrections, George Lombardi]," they wrote. "Because compounding pharmacists function more as drug manufacturers than medical personnel, they should not fall within the sweep of the statute. Testing laboratories are even less likely to be deemed analogous to 'medical personnel.'"

Unless something changes in the next few days, on Wednesday, the Missouri Department of Corrections will carry out its third execution in as many months.

Follow Chris McDaniel on Twitter@csmcdaniel