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Federal Appeals Court Orders Disclosure of Missouri’s Lethal Injection Methods

A federal appeals court has refused to overrule U.S. District Judge Stephen R. Bough’s decision ordering the Missouri Department of Corrections (MO-DOC) to disclose information about Missouri’s use of pentobarbital in a single-drug protocol for lethal injection executions.

Mississippi Death Row inmates Richard Jordan and Ricky Chase are seeking the information from Missouri, Georgia and Texas as part of their civil rights lawsuit aimed at stopping Mississippi’s use of a three-drug combination that causes a torturous death. They are represented by attorneys with the Roderick and Solange MacArthur Justice Center’s office in New Orleans.

In the opinion filed Friday, a three-member panel of the U.S. Court of Appeals for the Eighth Circuit ruled Judge Bough’s order does not impose an undue burden on MO-DOC and rejected MO-DOC’s contention that disclosing the identities of suppliers would prevent Missouri from executing prisoners in the future.

The appellate court noted MO-DOC does not have non-disclosure agreements with the suppliers and rejected MO-DOC’s “speculative prediction” that a supplier identified to the public would stop supplying pentobarbital. The court also pointed out that the loss of a supplier might not prevent MO-DOC from finding an alternative supplier or even manufacturing the drug in-house.

In addition, the court rejected MO-DOC’s argument that the information should be protected as a “state secrets privilege,” an entitlement courts have applied “in cases involving national security, diplomatic secrets, and military intelligence” but have never invoked in any other types of cases for state agencies, according to the ruling.

“This appellate court ruling upholds Judge Bough’s repudiation of MO-DOC’s claims that public disclosure of the exact drugs used and the drug suppliers would lead to threats, intimidation and harassment of those suppliers,” said Jim Craig, Co-Director of the New Orleans office of the MacArthur Justice Center. “It would be fundamentally unfair for the law to, on the one hand, require our clients to produce evidence of ‘known, available alternatives’ to Mississippi’s proposed method of execution, and on the other hand, to prevent us from obtaining evidence of those alternatives. Missouri has been hiding this information for too long. It’s time for it to be disclosed and for MO-DOC officials to be deposed under oath. These public servants and the vendors who get tax dollars for their drugs should have nothing to hide from the public.”

Craig noted that in the absence of further action by the appellate court or district court, MO-DOC will be required to produce the documents within 14 days.

Craig said recent U.S. Supreme Court decisions require Jordan and Chase to produce evidence that there is a “known, available alternative” to Mississippi’s use of a paralytic agent and potassium chloride, drugs which cause conscious suffocation and intense internal burning if the prisoner is not first anesthetized to unconsciousness. The MacArthur Justice Center is seeking such information by subpoena to Missouri, Georgia and Texas.

Craig is assisted in the litigation by Emily Washington, an attorney with the New Orleans office of the MacArthur Center, and by Mae C. Quinn and Amy Breihan of the St. Louis office of the MacArthur Justice Center.

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PDF of Order Denying Motion to Quash »

PDF of Per Curium Denying MDOC writ »

Keywords: Judge Stephen R. Bough, lethal injection, Missouri, Richard Jordan, Ricky Chase

Posted in News releases