A federal appeals court heard arguments Tuesday on a lawsuit filed by 23 death row inmates who are challenging Missouri's secrecy-shrouded lethal injection protocol — including one who was due to be executed within hours.
Earl Ringo Jr. was scheduled to receive a lethal dose of pentobarbital at 12:01 a.m. local time at the state penitentiary in Bonne Terre for the murder of delivery man Dennis Poyser and manager-in-training Joanna Baysinger during a 1998 robbery of a Ruby Tuesday.
Ringo, 40, was pressing last-minute appeals on several fronts, including a claim that racial bias played a role in his sentencing by an all-white jury.
In another court filing, he argued the execution should be canceled because of revelations that prison officials have been quietly using the controversial drug midazolam on condemned inmates.
Midazolam is the common thread in three executions this year that did not go as planned in Ohio, Oklahoma and Arizona — and Missouri Department of Corrections officials said under oath in January that they would not use the drug.
But St. Louis Public Radio reported last week that since November, nine death row inmates have been injected with midazolam before being given a lethal dose of pentobarbital.
Ringo's lawyer says he believes midazolam isn't being used simply to calm the nerves of condemned inmates but to "mask the symptoms of the lethal injection drug" — the pentobarbital.
"The Department's actions shock the conscience, and a hearing is required to determine whether the prison intends to continue its pattern of unconstitutional executions," defense lawyer Richard Sindel wrote in a motion.
Corrections officials said midazolam is "not part of the actual execution."
"A sedative is administered to relieve the offender's level of anxiety in advance of the execution. The only lethal chemical the department uses is pentobarbital," the agency said in a statement.
Elsewhere, midazolam is used as a lethal agent.
In Ohio, it was part of a two-drug injection tried for the first time during the January execution of Dennis McGuire, who took nearly 25 minutes to die and appeared to gasp for breath.
The botched April 29 injection of Clayton Lockett, which prompted the White House to order a review of execution procedures nationwide, also involved midazolam, as did Arizona's July 23 execution of Joseph Wood, which lasted two hours.
The issue of midazolam was raised Tuesday before the Eighth U.S. Circuit Court of Appeals, which heard oral arguments on the lawsuit filed by the 23 death-row inmates — nine of whom have already been executed.
They also claim that the Show-Me State is violating the Constitution by refusing to name the compounding pharmacies that sell the pentobarbital. And they are challenging lower court rulings that have presented a paradox: Even if they successfully show an execution method would be unduly painful, they must recommend a more humane alternative to end their own lives.
While Texas remains the leading capital-punishment state in America — 16 murderers were put to death in the state last year — Missouri could break its own state record for executions by January. If his appeals fail, Ringo will be the eighth prisoner to enter the death chamber in 2014, the most in 15 years.
State officials have shown no inclination to slow the pace. In fact, Attorney General Chris Koster suggested this year that the prison system should make its own lethal injections so it doesn't have to rely on suppliers that demand anonymity.