Just after midnight tonight, convicted murderer Herbert Smulls will be executed by the Missouri Department of Corrections. On February 5, Christopher Sepulvado, convicted of killing his stepson in 1992, will meet the same fate in Louisiana.
It’s likely that both men will die not knowing what exactly is being shoved into their veins.
Information about the drugs that will be used to kill these men—including where they came from, or if they’ve been tested for purity—has been kept a closely guarded secret by state correctional departments in both Louisiana and Missouri.
States became much more secretive about where they procure execution drugs from after sources of name-brand, FDA-approved drugs made their products unavailable for executions in the United States in 2010 and 2011.
Lawyers that represent both condemned prisoners have been trying to get their states to reveal information about the drugs, but have so far been unsuccessful.
Both Missouri's and Louisiana’s state correctional departments argue that the identities of these pharmacies are protected under a state law that allows the identity of those involved with executions to be kept confidential.
Lawyers that represent both condemned prisoners argue that states must answer questions about whether or not the execution will be humane and comport with the Constitution. Without information about the drugs, those questions have gone unanswered.
According to Megan McCracken, Eighth Amendment Resource Counsel at U.C. Berkeley School of Law's Death Penalty Clinic, “If lawyers for the condemned prisoners can't get the information [about the drugs], then they cannot meet their legal burden in court to show that there's a substantial risk of harm.”
By keeping this information a closely guarded secret, states are asking condemned inmates to take their word for it that the source is legitimate and the drugs won’t result in cruel and unusual punishment when administered.
However, new information reveals that Louisiana may be breaking the law to execute Christopher Sepulvado on February 5.
In a court document filed on Friday, Louisiana officials admitted that the Department of Corrections has not yet obtained the pentobarbital for Sepulvado’s execution. Instead, officials admitted they are “in the process of procuring 15 grams of pentobarbital,” and would disclose more information when they have the drug in their possession. The court document can be viewed in full below:
However, according to the state’s execution protocol, Louisiana must verify that the pentobarbital is in stock at least 30 days prior to a scheduled execution. If the state executes Sepulvado next week, it will be breaking its own protocol.
Additionally, according to recently released emails, Louisiana prison officials looked into illegally obtaining pentobarbital from The Apothecary Shoppe, a compounding pharmacy located in Oklahoma, last September. In the emails (which can be viewed here), The Apothecary Shoppe asked Louisiana to complete a non-disclosure agreement, which it attached.
The Apothecary Shoppe is not licensed to provide drugs in Louisiana, according to the state pharmacy board’s online database. If the state does purchase pentobarbital from this pharmacy, it will be breaking state law in addition to its own protocol.