A pharmacy has refused to provide a drug for an execution in Missouri as part of a settlement with the death row inmate's lawyers - but it is unclear whether the agreement will prevent or delay next week's lethal injection.
A court hearing is scheduled today in the federal lawsuit filed by inmate Michael Taylor against The Apothecary Shoppe, a chemist's in Tulsa, Oklahoma, that his lawyers said would provide a drug that could cause "inhumane pain".
Execution drugs have become increasingly difficult to obtain because major drug-makers stopped selling pharmaceuticals for use in the death penalty.
Many states, such as Missouri, have turned to compounding pharmacies, which manufacture drugs for individual clients.
Taylor's lawyers have asked a judge to dismiss his case because the company agreed not to prepare or provide any drug for use in his lethal injection. The pharmacy has not yet provided any drug to the Missouri Department of Corrections for the execution,.
Missouri governor Jay Nixon indicated last week that the state could move forward with the execution even after the judge issued a temporary restraining order that blocked the company from providing the drug.
He did not directly say "yes" or "no" when asked if Missouri had enough drugs for the execution, but he twice stressed that the Department of Corrections was prepared.
The state has refused to say where it obtains its execution drug, arguing that the source is part of the execution team and therefore shielded from public disclosure. And the Apothecary Shoppe would not confirm that it supplies a compounded version of pentobarbital to Missouri for use in lethal injections.
In their lawsuit, Taylor's attorneys alleged that Missouri turned to The Apothecary Shoppe to supply compounded pentobarbital because the only licensed manufacturer of the drug refuses to provide it for lethal injections.
That company, Illinois-based Akorn, agreed to that condition when it bought the exclusive rights to the drug in January 2012 from a Danish company that had produced it under the trade name Nembutal.
Taylor's lawsuit alleges that several recent executions in which compounded pentobarbital was used showed it would cause him "severe, unnecessary, lingering and ultimately inhumane pain".
It also questioned whether the Tulsa pharmacy could legally produce and deliver compounded pentobarbital. It alleged the pharmacy was not registered as a drug manufacturer with the US Food and Drug Administration and violates federal law each time it delivers the drug across state lines to Missouri correction officials.
Taylor is on death row for raping and killing 15-year-old Ann Harrison after abducting her from a Kansas City school bus stop in 1989. Another man is also on death row for the crime.
Taylor was hours away from execution in 2006 when the US Supreme Court granted a stay over concerns about whether the state's three-drug method could violate the US Constitution's guarantee against cruel and unusual punishment.
Missouri has executed three men in the past three months, the first three executions using pentobarbital. Missouri had previously used a three-drug execution protocol.