Death Penalty

Herbert Smulls To Be Executed With Secret (and Likely Illegal) Drugs at Midnight



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.

This above-mentioned email is the only available written communication between Louisiana officials and a pharmacy regarding the procurement of pentobarbital. Nothing else has been made available since then, and it's unclear if anything more will.

With Sepulvado's execution one week away, it seems that Louisiana officials are trying their best to run out the clock, hoping they won't be held accountable for any wrong-doing after the fact.

In Missouri, recent evidence has shown that the pentobarbital that will be used to kill Herbert Smulls may be contaminated, and if so, will likely result in a painful death. It's also likely that Missouri illegally purchased this pentobarbital from a pharmacy that is not licensed to do business in the state.

Lawyers representing Smulls filed a motion for a 60-day stay of execution on January 21. The motioncites the deposition of a Missouri prison system executive, David Dormire, in which he admits "the pentobarbital intended to be used to execute Mr. Smulls had been picked up on January 14, and was being stored in a locked location by the Department." Furthermore, he states the expiration or "use by" date of the compounded pentobarbital was "30 days from being compounded," and that the pharmacy had directed the Department to store the pentobarbital at room temperature.

However, according to the United States Pharmacopeia (USP) standards cited by Smulls' attorneys, "high risk" compounded drugs, such as pentobarbital, should be maintained at room temperature for a maximum of 24 hours before administration because of the risk of degradation.

According to pharmacy expert Larry Sasich, whose affidavit was cited in the motion, improper storage of pentobarbital "creates a very high risk that the compound drug will degrade or allow for more rapid growth of bacteria," which can lead to a "substantial risk of pain and suffering" upon injection.

By the time Smulls is executed, the pentobarbital will have been stored at room temperature for 15 days.

A separate expert declaration by Sasich filed by Smulls' lawyers last Friday reveals that the pentobarbital sold to the Missouri Department of Corrections was approved by Analytical Research Laboratories (ARL)—the same lab that approved drugs made by New England Compounding Center that caused a deadly meningitis outbreak that killed 64 people and sickened over 700 others nationwide in 2012.

The legality of these purchased drugs has also come into question in recent days.

Last week, the state of Missouri disclosed a heavily redacted copy of a license from the pharmacy that provided the pentobarbital to Missouri newspaper The Pitch in response to an open-records request. The Pitch also obtained a list of licenses processed by the Oklahoma Board of Pharmacy the same day this redacted pharmacy's license was issued. The Pitch was able to narrow the source down to two likely pharmacies, neither of which is licensed to sell drugs in or to Missouri.

Regardless of all of this information coming to light in recent weeks, the 8th U.S Circuit Court of Appeals in Missouri issued a ruling late last Friday night that all but guarantees the state will execute Herbert Smulls with drugs that could be illegal as well as contaminated.

From the ruling:

In sum: "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives."

This ruling, and the legal precedent it follows, is hugely significant, as well as disturbing. The court essentially ruled that death-row inmates must prove that Missouri's use of compounded pentobarbital is the worst of all "known and available alternatives." That, of course, is impossible when information about the drug has not been made readily available.

Essentially, the court shifted the burden of proving that the drugs do not constitute "cruel and unusual punishment" away from the state, and onto the prisoners who are barred from learning the most basic information about the drugs. This ruling could prevent any death-row inmate from ever inquiring about the drugs Missouri chooses to use against him in the future.

It's imperative that this grim, but some might say necessary, role of the state is carried out with transparency and oversight to ensure it's done legally. So far, Missouri and Louisiana have shown they are willing to break their own execution protocols and laws at the expense of the condemned when they think that no one's looking.

Update: On January 27, Louisiana's Department of Corrections confirmed in an email statement, published by Louisiana's The Times-Picayune, that it was revising its execution protocol to allow for the use of 10 mg of midazolam and 40 mg of hydromorphone if pentobarbital isn't available to be administered. 

Midazolam and hydromorphone are the same drugs used in the controversial execution of Dennis McGuire, which took place in Ohio on January 16. McGuire's execution lasted 26 minutes, the longest since Ohio resumed the death penalty in 1999.

The email did not provide any additional information regarding where the state was procuring these new drugs from, or if it was even in the process of procuring the drugs at all.

Update 2: On January 28, the United States Supreme Court ordered a temporary stay of execution for Herbert Smulls while it reviews petitions filed by his lawyer over the state's secrecy over its execution drugs.

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  1. 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.

    These men are not being treated for cancer, you know. I am against the death penalty, but worrying about the "purity" of the poison seems a bit peripheral. I do believe there should be an assurance of effectiveness with no gratuitous infliction of pain.

    1. Agreed. Pentobarbital has been around a long time, and is undoubtedly a very well researched drug. The article does not site any relevant research about shelf-life issues for the drug and associated pain and suffering associated with using an expired drug. It assumes adherence to government regulations are evidence the drugs are bad, and these convicted killers will suffer needlessly if LA doesn't abide by the regulations. This premise is flawed.

    2. Listen, you heartless bastard, we can't have these prisoners dying of infection before the drug kills them!

    3. This whole article strikes me as pointless concern trolling.

      1. If someone really is that terrified of physical pain then this violates a basic premise of our country's code.

        I think death is more frightening than physical pain, but then again I'm not a murderer.

        The reason this issue is important to me is because of the reasoning of the state.

        They forcefully act on you (death penalty), they refuse to give info on whether it complies with their own code (constitution), and then they prevent redress by making the requirement beyond what is logically possible (due to refusing transparency.

        This is one version of impunity. You absolutely cannot trust an entity who seeks this quality for themself. The likelihood on case-by-case basis its motivated by evil approaches 100%.

        There is no reason to shroud the death penalty in any shadow. WTF is wrong with these govt officials? Its scary to realize they actively seek to obfuscate how they kill ppl.

    4. When you can guarantee that the victims of murderers die without pain, angst and regret (of life plans unfulfilled), then society can ensure murderers die without pain.


  2. I'm against the death penalty myself, but if they are going to do it why not just give them a massive overdose of heroin? Just go to sleep with a smile on your face and never wake up. Bad theater?

    1. Or just shoot them while they're sleeping. The whole production: walking to your death, eating a last meal, etc seems rather cruel when you realize they could just off you in your sleep one night.

      1. I think that's pretty close to Japan's method of capital punishment.

        1. That's also pretty close to the method of execution in "1984", but only after the prisoner learns to love Big Brother.

    2. I hear breathing pure nitrogen is a pretty painless way to go.

  3. If they're truly guilty, and I don't mean convicted in a court of law by a jury of their peers and a (hopefully) upstanding judge and prosecutor, but honest to Yahweh, guilty as charged and they fucking know it and committed a crime heinous enough to warrant being executed, forgive me if I don't really care how gruesome their death is.

    But since we can't really know, this is probably bad.

    1. True guilt beyond the shadow of a doubt is difficult to establish in many cases. Given that reality I'd rather give them a clean and painless death.

      Also, if we condone painful death in some cases it is a steep and slippery slope to normalizing torture. I don't trust the state with that type of power.

    2. Depends on what the purpose of the execution is. Is it to punish the offender? It seems that they're dead at the end of it either way, so torturing them is gratuitous. Is it to deter future offenders? Studies seem to show that the death penalty isn't much of a deterrent. Perhaps that would be different if you pull the guy's fingernails out before slowly hacking his head off with a rusty shovel. Is it for revenge? If that's the case, let the victims' families do it. Also, revenge seems to be a really shitty reason to perform justice. Besides is there a sense of societal vengeance? Does society feel the loss and seek revenge for a garden variety murder? Is it for rehabilitation? Obviously not, because they're dead.

      It seems like the purpose of the death penalty is a blend between punishment and revenge. I don't really know if it would make sense without the revenge factor.

      1. Spot on, and EXACTLY, but pro-capital-punishment folks will NEVER admit to that truth.

        And please, everyone, don't hand me any of that biblical "eye for an eye" crap, either. Same difference. Anger, vindictiveness, hatred.

        I oppose capital punishment for many reasons, but I can't understand why proponents don't just agree on carbon monoxide in increasing concentrations for that last nap...

        Oh, and if an executed prisoner is later found to be not guilty for ANY reason, please discuss the appropriate punishment for the judge and/or jury that DELIBERATELY KILLED HIM OR HER, too, ok?

  4. It's likely that both men will die not knowing what exactly is being shoved into their veins.

    But if they did know, then it would be OK? I have a feeling that their victims were not certain of how they were going to die before they were murdered, either, so it seems actually appropriate.

    1. I'm gonna guess that the purity or composition of the chemicals being injected into their bodies are an insignificant concern relative to the fact that they are about to die.

    2. Yeah, but given the number of cases of actual innocence which have come to light recently it becomes us to err on the side of mercy.

      No sympathy for actual murderers, but we can well afford to take the moral high road here bearing in mind that we do execute the innocent on occassion.

    3. Agreed. Since using these substandard chemicals brings the original murder victims back to life, we'd be fools not to use them. I can't believe we've waited this long.

  5. what a waste, if they are going to execute people a bullet is cheaper and if fired properly guaranteed and painless.

  6. IV of whatever they give you during colonoscopy and then the guillotine. [Stipulation - confessed murderer with no doubt about it, and the heirs of the victims would rather not keep the p.o.s. around to pay restitution.]

  7. My guess is that they are using veterinary grade pentobarbitol - the same stuff that they use to put fido and fluffy to sleep.

    1. Fluffy was put to sleep?!


      Oh, you meant as in "fluffy the cat" not "Fluffy the H&R poster"? Nevermind.

  8. What was so bad about the electric chair? Or even the noose? If it was good enough for Nazi war criminals, it ought to be good enough for these guys.

  9. Wait?
    Tested for purity??
    We're talking about a chemical that is meant to kill another human being and you're mentioning purity!?!?!

    Well done.

  10. I'm kind of ambivalent on the death penalty. But if we're going to have it at all, why not simply go back to the tried-and-true: firing squads, guillotine, or hanging?

  11. Hmm yeah why not heroin, or the guillotine.

  12. There could be no possible way to die that would be more humane than a morphine overdose. Do it with a drip, and the prisoner just drifts off into sleep, then a functional coma, then their breathing stops.

    Why we need these elaborate and stupid cocktails is utterly beyond me.

    1. This. It seems very deeply weird that there are people who spend time thinking about the 'best' way to kill someone.

  13. A lot of things that meet the literal definition of "drug" in state pharmacy law and the FFDCA are not generally understood as drugs, and so it should be understood in the case of substances used to deliberately kill someone. They're chemical weapons or possibly pesticides, allowing that a human being can be a pest. Otherwise you'd have to consider bullets as medical or veterinary devices.

  14. Did anyone ever ask the Hangman who made the rope?

    Does Utah disclose the manufacturer of it's ammo? Or the caliber?

    Why not just duct tape a .357 police revolver to his head directly across from the medulla oblongata and blow it apart. Instant death. A bit messy but it is quick and doesn't hurt.

  15. I don't know if this article is meant to be informative,educational, forewarning or humorous. I find it a little of each. God bless the executioner...he has the hardest job. The outcome will result in one less murderer on this earth. That is a certainty.

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  18. Herbert Smulls is dead. It took him twenty-two years to die. Twenty-two years after he shot a Louisiana jeweler and his wife. The jeweler died, the wife played dead and lived.

    Smulls was caught fifteen minutes later with the stolen goods in his possession. The jeweler's wife identified him. Then the law took over. It took twenty-two years of leisurely consideration before the law could decide that Herbert Smulls did indeed deserve to die. And the scandal is that he was put to death with an inadequately documented lethal drug that might have given him meningitis? I wouldn't turn a hair if the state had given him meningitis and let him die of that.

    He was injected with this sinfully undocumented drug, mumbled a few words, took two breaths and died. Compare this death to the death of Stephen Honickman, who died on the floor of his jewelry shop pleading with Smulls to take what he wanted and leave. Compare his suffering with Florence Honickman's, hearing her husband die and then suffering through twenty-two years of legal bumbling. Then tell me that Herbert Smulls suffered unduly.

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