The Director of the Department of Corrections has for the first time spoken publicly about the questions and controversy raised in recent months over the carrying out of executions.
George Lombardi has told the House Committee on Government Oversight and Accountability it is a statutory requirement that his Department conduct executions, and it is working within the statutory framework in place to do so.
“Keeping in mind, please,” Lombardi asks of the Committee, “Statute mandates the Department of Corrections to carry out executions. It doesn’t say, ‘Try your best.'”
He says it is because of that mandate that the Department looked “all over the country” for a way to acquire a drug to use in lethal injections when it became clear it could no longer use propofol.
“We found that there was a compounding pharmacy that was willing to [provide the drugs], and that’s what moved us forward to change the protocol accordingly.”
Lombardi did not confirm or dispute the identity of the pharmacy, reported to be located in Oklahoma and only now seeking a license in Missouri. He did confirm that the drugs are paid for in cash, something that he says has been true since the administration of Governor John Ashcroft.
Lombardi says all those involved in the execution protocol who must be paid are paid in cash. He says that is because those participants have made clear that they would not be involved if they were paid any other way. He says it was part of maintaining anonymity for those participants.
Lombardi tells the Committee that to pay those individuals in any other way would be “the de-factor abolishment of the death penalty.”
Listen to the testimony of Corrections Department Director George Lombardi, 28:30
His testimony was challenged by Attorney Joe Luby with the Death Penalty Litigation Center, who says Lombardi is “abusing” the state statute that requires the identities of members of an execution team to be kept secret.
“The same statute defines ‘execution team’ very narrowly,” says Luby. He quotes, “The execution team those persons who administer lethal chemicals and those persons such as medical personnel who provide direct support for the administration of lethal chemicals.”
That shouldn’t include the pharmacy, says Luby, who says then that the pharmacy’s identity should not be kept secret and it should therefore not be paid in cash.
Luby also accuses Corrections of moving too quickly in carrying out executions.
“It is absolutely unacceptable for the state to execute prisoners before the courts can resolve their claims. That has been the case with the last three prisoners who were executed in this state. This is a uniquely Missourian pattern of behavior.”
A federal judge has also been critical of the timing o the execution of Allen Nicklasson in December.
Assistant Missouri Attorney General David Hansen tells the Committee Missouri has acted within the law.
“The law is clear that the pendency of litigation is an insufficient reason to stop an execution,” Hansen says. “On January 29th, the date of [Herbert] Smulls’ execution, the State of Missouri directly went to the United States Supreme Court and asked if the execution should happen. The Court said no, the execution should not be stopped. They said that three different times on that day.”
The Chairman of the Committee, Representative Jay Barnes (R-Jefferson City), says he is satisfied that Missouri has not executed while a stay was in place that should have halted it.
As for what action, if any, he thinks the legislature needs to take based on what it learned on Monday, Barnes says, “I don’t think there’s any chance of any moratorium being put in place. I also think … the legislature out to take a close look at the procedures, especially how pharmaceuticals are procured.”
Barnes refers to legislation offered by Representative John Rizzo (D-Kansas City), that proposes a moratorium while an 11-member panel reviews death penalty and execution protocol. His legislation (HB 1409) has been assigned to the House Judiciary Committee but a hearing has not been scheduled.
“I really feel like this process is being spitballed together in an aspect to carry out the law,” says Rizzo, “but in the process maybe does violate law.”
Rizzo says the legislature needs to have some oversight into the execution process.
“The policy invariably forces illegalities,” Rizzo says he learned on Monday. “The Director (of corrections) has to carry out an execution, but there are no pharmaceuticals available to do that. Then he has to go above and beyond to actually go to a pharmacy that’s not regulated by the State of Missouri that, in essence, violates FDA regulations.”
Barnes noted legislation filed last week by Representative Eric Burlison (R-Springfield), HB 1737, that would make the execution protocol subject to review by the Joint Committee on Administrative Rules as being one avenue for increasing oversight. That bill has not been referred to a committee. Rizzo is one of its co-signers.
Missouri is scheduled to carry out another execution on February 26; that of Michael Taylor, who pled guilty in the abduction and murder of 15-year-old Ann Harrison girl in Kansas City 1989.