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Stay of Execution of Smulls Vacated; Compounding Problem Remains

By William Peacock, Esq. on January 29, 2014 | Last updated on March 21, 2019

Last night, shortly after the State of the Union address, Justice Samuel Alito spared Herbert Smulls' life. Unfortunately, the mercy was short-lived, and he will be executed, likely some time before midnight tonight.

Why was the stay granted initially, and what is so troubling about his execution? The issues are not novel: an all-white jury, plus execution drugs made in secret by a compounding pharmacy. The latter issue, though not dealt with today, is repeating itself across the country and raises important issues of cruel and unusual punishment.

Stay Granted

Smulls' counsel, Cheryl Pilate, filed two last-minute challenges to his execution, after the U.S. District Court in Kansas City and the 8th Circuit Court of Appeals both denied relief. According to the Associated Press, Gov. Jay Nixon denied clemency on Tuesday evening as well.

That left the conservative Justice Samuel Alito as his last hope. A stay was issued last night, about two hours before his scheduled execution at 12:01 a.m., though the stay did not specify the grounds for the temporary relief. The Court's website notes that both challenges were linked on the docket.

Compounded Drugs

As we saw with Warren Lee Hill, thanks to manufacturers' refusals to supply drugs for executions, states are increasingly and controversially turning to compounding pharmacies for execution drugs. And much like Georgia, Missouri refuses to disclose the name of the compounding pharmacy, arguing that the pharmacist is part of the execution team, and its name cannot be released to the public.

The issues with compounding pharmacies are numerous. For one, a mistake in manufacturing can mean a torturous end, and cruel and unusual punishment for a prisoner. These pharmacies produce custom orders of drugs and are not overseen by the Food and Drug Administration. Plus, according to The Associated Press, the state stores the drug at room temperatures, which can reduce the drug's potency.

Is This the Pharmacy?

Despite the state's secrecy, Smulls' counsel named The Apothecary Shoppe in Tulsa, Oklahoma as the source of the state's drugs, citing publicly available documents, reports The Guardian. The pharmacy has also been linked to Georgia and Louisiana. It is not licensed in any of the three states. Missouri officials argued that they picked up the drugs in person, obviating the need for local licensure.

Earlier this month, compounding pharmacy drugs, of unknown origin, were used in the execution of Michael Wilson in Oklahoma. His last words were, "I feel my whole body burning."

Batson Challenge

The other argument for relief, which was previously denied by the court in 2009, involved a Batson claim. An initial jury deadlocked on everything but the robbery count, but a subsequent all-white jury found him guilty of first-degree murder and sentenced him to death. The lone black juror was dismissed over concerns about her demeanor and occupation.

The reputable Sentencing Law and Policy Blog passed along rumors that the Batson issue was what attracted the Court's attention, though no other media sources have since followed-up on the report.

Stay Vacated

In twin orders [PDFs], the stay was lifted without explanation this afternoon. The issue of compounding pharmacies, and cruel and unusual punishment, will have to wait for another case. As for Smulls, it seems unlikely, at this late juncture, that any of the local officials or courts will have a change of heart.

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