BY TONY RIZZO trizzo@kcstar.com
SEPTEMBER 2, 2016 (To Read Source Article, Click Here)
Missouri must reveal the source of the lethal injection drug it uses to carry out a death sentence, a federal appeals court panel ruled Friday.
A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld a lower court ruling that had ordered the Missouri Department of Corrections to provide information about its source of pentobarbital.
Within minutes of the ruling Friday morning, the federal judge whose order was upheld contacted Missouri officials to schedule a hearing to produce the supplier’s identity.
The Missouri attorney general’s office immediately asked the appeals court to withdraw Friday’s order so the ruling can be reviewed by the full 8th Circuit.
Missouri prison officials have consistently resisted efforts seeking the source of its lethal injection drugs.
Officials have argued that its suppliers “require the assurance of confidentiality” and that providing the information would result in the state no longer being able to obtain execution drugs.
But in Friday’s ruling, the appeals court said that the state’s fears about how the supplier would react if its identity is made public was only speculation and hearsay.
“We recognize that the public disclosure of a pentobarbital supplier’s identity may have detrimental consequences for the state,” the court noted Friday.
But the court found that the state was not entitled to keep the information secret based on any of its legal arguments.
The ruling stems from legal action on behalf of two inmates on death row in Mississippi who are challenging the constitutionality of that state’s three-drug lethal injection protocol.
In order to prevail on their challenge, the inmates are required to show that there is an available alternative to Mississippi’s method.
That prompted their attorneys to subpoena Missouri officials to obtain information about its drug source.
Missouri officials sought to quash that subpoena, but U.S. District Judge Stephen R. Bough denied that request earlier this year and ordered the state to provide the requested information.
“Missouri’s lethal drug suppliers are selling to a public agency; they cannot expect their sales to be kept a secret from the public, let alone prisoners who need that information to prove that Mississippi’s execution procedures will cause a severely painful death,” attorneys from the MacArthur Justice Center said in a statement after Bough’s order.
Missouri officials appealed to the 8th Circuit panel.
The state argued that complying with the request would create an “undue burden” and would violate Missouri’s right to sovereign immunity under the U.S. Constitution. It would also reveal information protected by the “state secrets” privilege, officials argued.
In Friday’s ruling, the 8th Circuit judges said that while Missouri prison officials said its current drug supplier required anonymity, the state failed to show it could not obtain a different source.
And Missouri officials have even suggested in other litigation that the state could establish its own laboratory to produce lethal injection drugs.
Those possibilities “undermine” the state’s argument against disclosure, according to Friday’s ruling.
The claim of sovereign immunity under the U.S. Constitution does not protect state governments from being subject to federal court discovery, according to the ruling.
The court also said that its previous state secrets rulings have only pertained to “national security, diplomatic secrets and military intelligence.”
“However, we have never recognized that state agencies can invoke the privilege in other types of cases,” the court wrote.
Lastly, the court said Missouri has alternate ways to protect itself if the information is made public.
The state could seek a protective court order to keep the information confidential except for its use in the Mississippi inmates’ case, the court said.
Missouri adopted the use of pentobarbital as its execution drug in late 2013 after it and other states experienced difficulty in obtaining previously used chemicals.
Since then, Missouri has carried out 19 executions, most recently in May. The state currently has no other executions scheduled.
Tony Rizzo: 816-234-4435, @trizzkc