Friday, 7 March 2014

The state of Missouri and compounding pharmacies: a Taylor made solution?

By Aaron Bailey, Technical Editor
LLM International Human Rights Law 2013-2014 
ON 26 FEBRUARY 2014 Michael Taylor was executed by the state of Missouri using an execution drug (pentobarbital) which the state had acquired from an unspecified source and which had not been subject to testing for purity, potency or contamination. This article discusses the constitutionality of Missouri’s actions and the differing views offered by both the majority and the dissenting minority in the U.S Court of Appeal (8th Circuit).
In 1989 Michael Taylor was convicted of the rape and murder of a young female victim. Both Taylor and his co-defendant, Roderick Nunley, were sentenced to death following their convictions. It is noteworthy that Taylor had pleaded guilty to the charges and demonstrated remorse very early on in the proceedings yet the District Attorney at the time still felt compelled to seek the death penalty. Unfortunate though it was, one can only speculate on the DA’s reasons for seeking the death penalty and that remains, frankly, outside the scope of this article.
The real focus of this article is on the final appeal to the U.S Court of Appeal the day before the execution and the previous appeal (again to the 8th Circuit of the U.S Court of Appeal) approximately one month before. These appeals both turned on the same legal question: whether failure to disclose information pertaining to the execution drug could result in a prolonged and painful execution therefore violating the Eighth Amendment of the United States Constitution.
The Eighth Amendment guarantees that no-one shall be subject to ‘cruel and unusual punishments’. Of course, what constitutes ‘cruel and unusual punishment’ is naturally a question open to interpretation. In 2008 the Supreme Court, ruling in the case of Baze v Rees, decided that “the Eighth Amendment compels an execution free from an objectively intolerable risk of harm”. Applying this to the Taylor appeal, the question to be asked was therefore whether Missouri’s potentially questionable source of the Pentobarbital and their failure to disclose the source, purity and potency of the drug, could lead to an ‘objectively intolerable risk of harm’ to Mr Taylor. The case was put before the Court of Appeal on January 24th and again on February 25th; the day before Mr Taylor was executed.
In the first judgement (24th January) reaching their decision the majority of the 8th Circuit Court of Appeal relied heavily on an interpretation of Chief Justice Roberts’ opinion in Baze v Rees that if a death row inmate is challenging an existing method of execution, they must plead a ‘readily available alternative method’. As Taylor et al were unable to suggest a different, suitable method the majority of the Court of Appeal held that their challenge of the existing method couldn’t succeed. Interestingly, Circuit Judge Bye (in his dissenting opinion) claims that: a) the requirement to suggest another method poses an absurd burden on the death row inmates and; b) that even if this ‘absurd burden’ was the standard, Taylor et al were suggesting another suitable method – involving the same use of pentobarbital but, crucially, pentobarbital that had been manufactured by an FDA (Food and Drug Administration) approved compounding pharmacy and had been tested for purity, potency and contaminants.
Despite the persuasive arguments made by Taylor’s attorney, the majority of the Court found in favour of Lombardi (Director of Missouri Department of Corrections) and therefore allowed the state to press ahead with the use of Pentobarbital without specifying any further details regarding the drug. However, less than two weeks before Taylor’s scheduled execution, details of the compounding pharmacy were leaked to the press. Naturally the pharmacy was subject to negative commentary in the press and, as a result, refused to supply the Pentobarbital to Missouri D.O.C for use in Taylor’s execution. Faced with yet another delay, Missouri D.O.C managed to appropriate another quantity of Pentobarbital from a different source. Taylor’s attorney launched a new appeal on similar facts, which was swiftly dismissed by the Missouri District Court. Taylor’s attorney then proceeded to petition the Court of Appeal for a rehearing. Unfortunately the majority of the court denied the petition and Taylor was executed the very next day. Yet in his dissenting opinion, Circuit Judge Bye (whose opinion was approved by Judges Murphy and Kelly) raises some salient points.
Circuit Judge Bye claimed that from the lack of information provided by Missouri, the ‘pharmacy’ could be nothing more than a high school chemistry class. This of course, leaves open “the possibility that the ingredients do not meet legal or medical standards”. Judge Bye went even further asserting that “Missouri is actively seeking to avoid adequate testing of the alleged pentobarbital, which raises serious questions about the drug’s safety and effectiveness”. Many would agree that Judge Bye is correct to be concerned about the efficacy and safety of the pentobarbital when the manufacturing of this drug has not been approved by the FDA (Food and Drug Administration).
Additionally Judge Bye agrees with the argument put forward by Taylors’s attorney as he states: “nothing Taylor asks for would place an undue burden on Missouri. He simply seeks transparency concerning the manufacturer of the chemical used to execute a death sentence and testing of the chemical for identity, potency, purity and contamination. Considering the enormity of the issue at stake, this is a burden which is entirely due”.

It would appear then, to the casual observer, that the 8th Circuit Court of Appeal has been and continues to remain divided over how to tackle the ‘methods of execution’ question. With pharmaceutical companies and compounding pharmacies wary of the negative attention from the press, most remain reluctant to manufacture execution drugs and those that do, are determined to remain anonymous. Furthermore, considering the anti-death penalty stance of the European Union and restrictions placed on the export of execution drugs (see regulation 1352/2011) it seems likely that the ‘methods of execution’ question is likely to arise repeatedly in the foreseeable future. Of course whilst the approach of the E.U is commendable and has certainly played a part in the decision of some states to reconsider their stance on the death penalty (eg  - State of Maryland – abolished death penalty in May 2013) it may also potentially lead, albeit indirectly, to the return to less humane execution methods. Recently several senators have advocated a return to firing squads, gas chambers and electric chairs as methods to execute death sentences. No doubt, should the state choose to proceed with these methods, their constitutionality will be challenged before the courts. Rightly so, most would say.

 In conclusion one must see the Taylor decision as important for two reasons. Firstly, as described by Circuit Judge Bye, it shows a continuation of Missouri’s “storied history of ignoring death row inmates’ constitutional rights to federal review of their execution.” Yet the second reason remains the most important for it demonstrates that both the state of Missouri and the majority of the Court of Appeal (8th Circuit) maintain a dogged commitment to achieving the ends, with seemingly little regard to the means. In the light of allegedly ‘botched’ executions such as that of Dennis McGuire (executed in Ohio on January 16th 2014) the question that must be asked is simply: at what point are the means no longer justified by the ends?


-        Re Lombardi 741 F.3d 888 C.A.8 (Mo.),2014.

-        Zink, et al. v. Lombardi, et al., No. 14-1388 (8th Cir., Feb. 25, 2014)

-        Baze .v. Rees 553 U.S 35 (2008)

-        I witnessed Ohio's execution of Dennis McGuire. What I saw was inhumane,

-        The return of the firing squad? US states reconsider execution methods,

-        States with and without the death penalty,