After a state appeals court rejected a lawsuit over how Missouri obtains its lethal injection drug, plaintiffs are considering options.
Their suit claimed Missouri was breaking state and federal law by using an illegal prescription to access pentobarbital from a compounding pharmacy.
Attorney Justin Gelfand, who represents the plaintiffs, said the Department of Corrections is unlawfully using a copied version of the drug because its manufacturer won’t sell it for the purpose of executing people.
“They have no right to create an exact copy through compounding solely in an effort to violate state and federal law simply because they can’t get a copy of the real thing” said Gelfand.
The suit also claimed the state was using the drug without proper authorization because its physicians are given no discretion over whether or not to issue the prescription. Gelfand said “There are a number of laws, federal and state, including criminal statutes, prohibiting administering a drug without a proper prescription by a physician”.
Gelfand called the state’s procedure a sham. “The state of Missouri is violating state and federal law in how it executes inmates sentenced to death. Our hope is that the courts would stop the Department of Corrections from continuing to violate these laws using taxpayer dollars.”
Gelfand notes the suit was as much about public integrity as about the death penalty. The court thew out the lawsuit over a technicality, saying it failed to state a claim from which relief could be granted.
The plaintiffs say they may appeal the case as far as the state Supreme Court. The state Missouri General’s Office, which defended the state, declined to comment on the case