Missouri inmate's lawyers call on supreme court to halt execution

http://www.theguardian.com/world/2014/apr/22/missouri-death-row-inmate-execution-secret-drugs

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Lawyers representing a death row inmate in Missouri who is scheduled to be put to death shortly after midnight tonight with a drug whose source is being kept secret are calling on the US supreme court to step in and stop the execution.

William Rousan’s attorneys argue that the impenetrable wall of secrecy surrounding the lethal injection drugs that the state of Missouri intends to use amounts to a violation of his constitutional rights. The defence team, lead by Philip Horwitz, argues that in the absence of any information about the batch of pentobarbital the state intends to use to kill Rousan, or about where the drug was obtained, the prisoner could be subjected to a form of cruel and unusual punishment banned under the US constitution.

The call for a stay of execution for Rousan – who would be the sixth inmate to be put to death by Missouri in as many months – comes just one day after the supreme court of Oklahoma postponed two executions. Clayton Lockett, 38, and Charles Warner, 46, were temporarily spared the gurney after a state court found that the secrecy surrounding the procurement of lethal drugs was unconstitutional.

A district court judge, Patricia Parrish, ruled on 26 March that by withholding information on where it was obtaining the drugs, the state of Oklahoma was violating the prisoner’s right to due process as set out in the 14th amendment of the US constitution. “I do not think that this is even a close call,” she said.

With intense legal action in Missouri, hard on the heels of the stay of execution ordered in Oklahoma, the issue of state secrecy in death penalty states is now reaching boiling point. Courts in Louisiana, Mississippi and Texas have also expressed misgivings about the creeping spread of secrecy adopted by death penalty states as a way of skirting around a European-lead boycott of corrections departments in the supply of lethal drugs.

So far, the US supreme court has tried to stay out of the bitter legal struggle. But death penalty experts suspect that unless a consensus forms between states, the highest judicial panel in the nation will eventually be forced to intervene.

“The US supreme court really wants to avoid this issue, which it sees as a matter for individual states,” said Richard Dieter, executive director of the Death Penalty Information Center. “But there are basic constitutional issues at play here of due process, and if there is a clear contradiction among the rulings handed out at state level, then the supreme court may have to step in.”

Such a contradiction is most likely to be seen in Missouri, where the courts have so far shown no truck with the argument that secrecy is a violation of fundamental rights. The state has extended its definition of the execution team to include pharmacists and other suppliers that sell lethal drugs to the corrections department, thus throwing a cloak of total secrecy around the supply chain.

Such secrecy is desired by death penalty states, because where the identity of the pharmacist or manufacturer becomes known, the source frequently chooses to stop providing the drugs for fear of adverse public attention. Earlier this year it was revealed that a Tulsa, Oklahoma-based pharmacy had been compounding pentobarbital and shipping it to Missouri for use in executions.

But Missouri’s cloak-and-dagger approach to its executions has already provoked sharp criticism from some senior judges. In February, Kermit Bye, a federal judge on the eighth circuit court of appeals, said caustically that “from the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."

Barring a last-minute stay from the US supreme court or from the Missouri governor, Jay Nixon, Rousan, 57, will be executed at 12.01am tomorrow morning. He was convicted of the 1993 murder of a couple, Grace and Charles Lewis, on a farm outside Bonne Terre.