A federal appeals court ruled on Thursday that the supplier of Missouri's execution drugs can remain secret — a reversal of the three-judge panel's ruling from last month.
Death row inmates in Mississippi are seeking information on how other states carry out the death penalty. In pursuit of that, the inmates subpoenaed information from the Missouri Department of Corrections, including documents that would identify the supplier of the state's lethal injection drugs.
Missouri Attorney General Chris Koster's office attempted to quash the subpoena, but a federal district court and a panel of conservative 8th Circuit Court of Appeals judges declined to step in, finding that the state's concerns were "hearsay" and "inherently speculative."
But on Thursday, after the state and the anonymous supplier submitted more information, the panel reversed course and granted the states request to quash the subpoena.
If inmates wish to challenge their executions, they have to argue a better method by which to be put to death. The Mississippi inmates sought out Missouri's supply of pentobarbital — Mississippi uses midazolam, a sedative used in several botched executions over the past few years.
But the supplier, filing under the pseudonym "M7," said that it would stop supplying execution drugs if its identity were revealed.
"[B]ecause M7 would not supply pentobarbital to Mississippi once its identity is disclosed, we conclude that M7's identity has no relevance to the inmates' Eighth Amendment Claim," the panel wrote.
"Second, even if M7’s identity had any relevance to the inmates’ claim, M7’s declaration also establishes that the disclosure of M7’s identity will result in an undue burden on" the Missouri Department of Corrections, as the supplier would stop selling the state drugs.
The supplier also argued it feared for its personal safety, something the Mississippi inmates disputed.
"But even if M7’s fears are unfounded, that does not change the fact that M7 has already declared a clear intention to cease supplying if M7’s identity is disclosed," the panel wrote. "Thus, we conclude that the harm to MDOC clearly outweighs the need of the inmates, and disclosure would represent an undue burden on MDOC."
The pharmacy also argued it has a First Amendment right to sell execution drugs, which it called "an expression of political views, no different than signing a referendum petition or selling a t-shirt." The court made no ruling on that claim.
Jim Craig, a lawyer for the Mississippi inmates with the MacArthur Justice Center, noted that neither Missouri nor M7 challenged the trial court's finding "that the Missouri Legislature did not shield lethal injection drug suppliers from production of information about their sales to a taxpayer-funded agency."
As to Thursday's reversal, Craig told BuzzFeed News, "Litigation is designed to be a search for the truth. But in this case, condemned prisoners like Richard Jordan and Ricky Chase have been denied the basic truth-seeking tools of the legal process. We are studying the Court of Appeals’ opinion to determine what steps we should take next."
The panel's ruling is likely to complicate death row inmates' efforts to challenge their executions. Under U.S. Supreme Court precedent, they have to argue a feasible and readily available alternative. But courts have so far been strict in limiting discovery or allowing subpoenas in furtherance of finding an alternative.