With Time Running Out, Missouri Inmate Herbert Smull's Fight Continues

Herbert Smulls is scheduled to be executed at 12:01 AM on Wednesday morning, his punishment for killing a St. Louis County jeweler in 1991. He has been a death row resident for more than 20 years. If Smulls' legal team succeeds in only one of the many appeals they've filed, his execution may have to be rescheduled, or maybe even cancelled entirely.

This past Sunday, Smulls' legal representatives filed a motion with U.S. District Court arguing that it was yet to be proven that the execution method – lethal injection – was not capable of causing pain and suffering for the inmate. Specifically, attorneys stated that because the state refuses to name the compounding pharmacy that makes the execution drug, they are unable to prove that it could cause Smulls harm. The appeal claims that Missouri's current execution protocol is a constitutionally unacceptable risk that demands further investigation.

Smulls' lawyers have also stated their case to Governor Jay Nixon and requested clemency. As of Monday evening, the Governor had still not announced a decision. A U.S. District Judge also refused to grant a separate motion for a 60-day stay of execution. One of Smulls' lawyers intends to appeal the denial.

Missouri Death Penalty & Lethal Injection

Since 1989, Missouri has used a cocktail of three drugs for executions. When drug manufacturers stopped making these drugs for executions, the state switched – late in 2013 – to a pentobarbital drug made by a compounding pharmacy. The state refuses to reveal the name of the pharmacy or its location. Smulls legal team is arguing that without complete information about the new drug, they cannot be sure that there is no potential for error or harm to inmates.

Courts have also struggled with this case and have issued conflicting rulings. After a Federal Judge ordered the state to disclose the identity of the pharmacy, the 8th U.S. Circuit Court of Appeals overturned the decision last Friday, allowing the name of the pharmacy to remain unknown. If the execution proceeds as scheduled, Smulls will be the third Missouri prisoner executed by the new lethal injection drug in three months.

The main argument made by Smulls' lawyers – and perhaps the one most responsible for the controversy and media attention – consists of the point that while the state requires Smulls to provide more evidence that the drug can potentially cause pain and suffering, he has been prohibited from discovering what could be a key piece of that evidence.

Smulls lawyers have announced that they would be requesting a review by the U.S. Supreme Court. Although time may be running out, lawmakers and advocates throughout Missouri have already voiced their concerns on this issue and their push to make changes to the laws. Just this morning, lawmakers introduced a bill to establish a commission that would oversee Missouri executions, rather than the Department of Corrections.

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