A federal appeals court is reconsidering its decision that would have effectively forced the Missouri Department of Corrections to disclose the identity of its execution drug supplier.
Lawyers representing Mississippi death row inmates in a challenge relating to that state's execution procedures subpoenaed information from the Missouri Department of Corrections about its drug supplier months ago. Missouri Attorney General Chris Koster’s office has attempted to quash the subpoena, arguing his state's supplier would refuse to continue selling the drug to the state if its identity were revealed.
Two weeks ago, a conservative three-judge panel of 8th Circuit Court of Appeals judges denied the state’s request to quash the subpoena, finding that the allegation that the drug supplier would discontinue selling lethal injection drugs was “hearsay” and “inherently speculative.” The court also immediately issued its mandate in the case, sending the matter back to the trial court that had refused to quash the subpoena.
This past Friday, the court entered an order recalling the mandate — effectively putting the case on hold while it decided whether to reconsider the matter.
On Tuesday, the panel of judges vacated the earlier decision and granted the state’s request that they rehear the case, vacating the earlier decision. The court also allowed the execution drug supplier itself to intervene in the case — and to do so anonymously.
Mississippi inmates subpoenaed the information about Missouri's execution methods as part of a case challenging Mississippi's execution methods. If death row inmates challenge a method of execution, they are required to point to a better method they would rather see implemented. The Mississippi inmates say finding out more information about how other states carry out the death penalty will help them find such an alternative.
Last week, Missouri's supplier, referred to only as M7 in the court filing, asserted that it fears for its “personal safety and well-being."
If Missouri’s request to quash the subpoena isn’t granted, the lawyers write, “M7’s life and well-being will be placed directly in jeopardy and M7’s constitutional First Amendment right to anonymity will be violated.”
Later, the lawyers state directly, “[I]f the Subpoena is enforced and M7’s identity is revealed, M7 will cease supplying Missouri with pentobarbital in order to prevent retribution, both physical and financial, from death-penalty opponents.”
On Tuesday, the court directed the supplier to submit any evidence by the end of next week.
Numerous states have argued execution drug suppliers could face physical threats and financial hardship if their identities were public. However, a BuzzFeed News assessment found there has been no evidence of threats to any outed execution drug supplier — and the evidence of threats put forth by states was contradicted by government documents.
M7 has sold drugs used in 16 Missouri executions since February 2014, making more than $115,000 in cash in the process. During that time, the state has largely cleared out its death row of inmates eligible for execution, with its most recent execution being held on May 11.
M7 argues that it should be allowed to do so, in part, because it has different interests in the case than does the state — including its physical and financial well-being.
The subpoena was sent to Missouri officials more than two months ago, but the supplier said it was only informed of the subpoena after the appeals court’s ruling in early September.
This story has been updated to reflect the 8th Circuit's order entered last Friday.
This story has been further updated to reflect the 8th Circuit’s order entered Tuesday.