In an 8-3 decision following an en banc hearing, the U.S. Court of Appeals for the Eighth Circuit ruled that the state of Missouri does not have to disclose the names of the physicians or laboratories that provide the drugs necessary to carry out executions by lethal injection.

The case came to the 8th Circuit via a petition for a writ of mandamus or prohibition filed by the Director of the Missouri Department of Corrections after a lower court ordered the Director to produce to the identities of the physician, the pharmacy, as well as the laboratory providing the drugs.

A three judge panel of the 8th Circuit initially held that only the physician's identity was to be protected. The court on its own motion then ordered a rehearing en banc and vacated the lower court's order and issued the writ of mandamus prohibiting the release of any of the names.

The controversy began when the State of Missouri could not get sodium thiopental -- its drug of choice for lethal injections -- after the only domestic supplier quit making it and the European Union refused to export it to any nation that had the death penalty.

Missouri then amended its death penalty protocol to provide for executions by use of the drug propofol. Governor Nixon then issued an order prohibiting the use of propofol amid "issues that have been raised surrounding" its use and the European Union again banned export of that drug to any country with the death penalty.

Finally, the state switched to pentobarbital and announced it had added a compounding pharmacy to its execution team. Thereafter, two prisoners -- Joseph Paul Franklin and Allen Nicklasson -- were executed under the new protocol.

A group of prisoners sentenced to death then filed a complaint alleging that the use of pentobarbital constituted cruel and unusual punishment. During discovery, plaintiffs sought the identities of the physician, pharmacy, and laboratory providing the drug. The district court ordered the Director to produce all three identities. Claiming that revealing these identities would expose those parties to harassment (or worse), the Director sought the writ of mandamus in the 8th Circuit.

In siding with the Director and enjoining the release of the names, the en banc court stated "the plaintiffs have not stated an Eighth Amendment claim based on the use of compounded phenobarbital." The court further held that discovery of the "sensitive information" their identities) would likely "prevent the State from acquiring the lethal chemicals necessary to carry out the death penalty."

Calling pentobarbital "the next best method" of execution, the court ruled the plaintiffs have no constitutional interest in the "mode" in which the Director produces their death. Therefore, said the court, the identities sought by the plaintiffs were not relevant.

See: In re: George A. Lombardi, No. 13-3699 (8th Cir. 01/24/2014).

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