A judge this week will decide the fate of a Missouri inmate slated for execution after the prisoner filed a federal lawsuit to keep an Oklahoma pharmacy from providing the lethal cocktail of drugs and the pharmacy agreed not to supply it.
A court hearing is scheduled Tuesday in the suit filed by inmate Michael Taylor against The Apothecary Shoppe, a compounding pharmacy in Tulsa that his attorneys said was providing a drug that could cause "inhumane pain" during his Feb. 26 execution, The Associated Press reported.
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In court documents filed late Monday, his lawyers asked a judge to dismiss the case because the company had agreed not to prepare or provide any drug for use in Taylor's lethal injection. The pharmacy also acknowledged it had not already provided any drug to the Missouri Department of Corrections for the execution, said Taylor's attorney, Matt Hellman.
However, Missouri Gov. Jay Nixon indicated last week that the state could move forward with the execution even after the judge issued a temporary restraining order that blocked the company from providing the drug. He did not directly say "yes" or "no" when asked if Missouri had enough drugs for the execution, but he twice stressed that the Department of Corrections was prepared.
Messages seeking comment about the settlement and Taylor's execution status weren't returned late Monday by either Missouri's attorney general or its Corrections Department. Messages also were left by the AP after business hours with the pharmacy and its attorney.
The state has refused to say where it obtains its execution drug, arguing that the source is part of the execution team and therefore shielded from public disclosure. And The Apothecary Shoppe won't confirm that it supplies a compounded version of pentobarbital to Missouri for use in lethal injections.
But in their lawsuit, Taylor's attorneys allege that Missouri turned to The Apothecary Shoppe to supply compounded pentobarbital because the drug's only licensed manufacturer refused to provide it for lethal injections.
Taylor's attorneys say the cloak of secrecy surrounding how Missouri obtains its execution drug and questions about loosely regulated compounding pharmacies raise concerns. The suit alleges that several recent executions in which compounded pentobarbital was used showed it would likely cause Taylor "severe, unnecessary, lingering, and ultimately inhumane pain."
Execution drugs have become increasingly difficult to obtain because major drug makers stopped selling pharmaceuticals for use in the death penalty. Many states, like Missouri, have turned to compounding pharmacies, which manufacture drugs for individual clients.
Unlike major drug companies, compounding pharmacies are not regulated by the U.S. Food and Drug Administration.
Taylor's lawsuit also questioned whether the Tulsa pharmacy could legally produce and deliver compounded pentobarbital. It alleged the pharmacy was not registered as a drug manufacturer with the U.S. Food & Drug Administration and violates federal law each time it delivers the drug across state lines to Missouri corrections officials.
Taylor is on death row for raping and killing 15-year-old Ann Harrison after abducting her from a Kansas City school bus stop in 1989. Another man also is on death row for the crime.
Taylor was hours away from execution in 2006 when the U.S. Supreme Court granted a stay over concerns about whether the state's three-drug method could violate the constitutional guarantee against cruel and unusual punishment.
Missouri has executed three men in the past three months, the first three executions using pentobarbital. Missouri had previously used a three-drug execution protocol.
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