Missouri Is Lying Under Oath About the Lethal-Injection Drugs It Has Administered

Missouri officials, some under oath, have apparently lied about the state's execution protocol, denying the repeated use of a controversial drug linked to a number of botched attempts in other states, according to newly disclosed documents.

The documents, uncovered by St. Louis Public Radio, show that midazolam, a sedative, has been used in at least the last nine executions in Missouri—seven of which have taken place this year—despite full-throated testimony from senior corrections officials to the contrary.

"I'm testifying right now to tell you that will not be the case," George Lombardi, Missouri's Department of Corrections director, told a lawyer during a deposition in January. "We will not use those drugs."

Lombardi was referring to the state's backup protocol of using midazolam or another drug in the event the state's supply of its preferred lethal-injection agent, pentobarbital, was exhausted.

But Lombardi's testimony appears inconsistent with documents obtained by St. Louis Public Radio, which "show that midazolam was not just a backup: It has in fact been used in each execution since November," the station reported. "What's more, these two men who offered assurances that the drug would not be used, have signed off on its use each execution."

The revelations come at a time when the death penalty is under renewed scrutiny following a series of high-profile botched executions in Ohio,Oklahoma, and Arizona, where an inmate took nearly two hours to die. In each of those failed attempts, midazolam was administered as part of the state's lethal cocktail.

Richard Dieter, the director of the Death Penalty Information Center, which opposes capital punishment, said Missouri's "categorical denial" is especially troubling because it reflects the extraordinary lengths a handful of states are willing to go to in order to keep their executions shrouded in secrecy.

"This clearly shows that states are not being forthcoming with their lethal injections," Dieter told National Journal. "It's hard for the public and investigators to judge the safety of what's being done."

It is unclear when midazolam was actually injected into Missouri's death-row inmates, except for one record that shows it was given the night before one inmate's scheduled execution, meaning witnesses would not have been present to observe its effects.

Lombardi, appointed by Democratic Gov. Jay Nixon, acknowledged separately in his deposition that a drug marketed as "Versed" may be used as sedative leading up to an execution, at the request of the inmate, a doctor or Lombardi himself. No acknowledgment, however, is made that Versed is a brand-name given to midazolam.

The records also show the state injecting an increasing amount of midazolam over the past year. In its most recent execution, Missouri used 6 milligrams, which one expert told St. Louis Public Radio could prove lethal. By comparison, Ohio uses 10 milligrams in its execution protocol. Arizona's method calls for 50 milligrams, while Oklahoma's demands 100 milligrams.

"It's ironic that some states are using it as an execution drug and others are using it so casually that they don't even count it as part of the execution," Dieter said. "For some it's lethal, for others it's treated like aspirin."

Missouri is already facing litigation due to the secrecy surrounding its lethal-injection protocol. In May, the Associated Press, The Guardian, and local media outlets sued the state on First Amendment grounds, arguing that the public has a right to know "the type, quality, and source of drugs used by a state to execute an individual in the name of the people."

Missouri is among a handful of states that refuse to reveal the supplier of their lethal-injection drugs even to the attorneys representing death-row inmates, fearing that such identification would result in reprisal against the local pharmacy producing the drug cocktails. Death-penalty opponents have argued that these stores, which active death-penalty states increasingly rely on in the face of boycotts from European manufacturers, are not subject to sufficient oversight by the Food and Drug Administration.

After executing just four people between 2006 and 2013, Missouri has put seven inmates on its death row this year, a pace that ties it with Texas and Florida for the most so far in 2014.

Missouri's next execution, of convicted double murderer Earl Ringo Jr., is scheduled for Sept. 10.

Gov. Nixon's office referred questions regarding the state's use of midazolam to the Department of Corrections, which did not respond to a request for comment.

Nixon publicly supports the death penalty, but he has forced a change of the state's lethal-injection protocol in the past. Last year, the state planned to put Allen Nicklasson to death using propofol, an anesthetic which contributed to pop icon Michael Jackson's death by overdose in 2009. The drug had never been used before in a human execution in the United States.

Under pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Nixon halted Nicklasson's execution in order to ensure "justice is served and public health is protected."

Nicklasson was eventually executed on Dec. 11, 2013, with a lethal dose of pentobarbital. He was also injected with a previously unreported dose of midazolam.