Herbert Smulls of St. Louis has an appointment to die on 12:01am Wednesday for murdering another St. Louis man back in 1991. Smulls' attorneys, however, aren't giving up without a fight. They contend that the drug Missouri uses for their executions is "concerning."

The state of Missouri switched last year to a different execution drug, pentobarbital, but will not release information about the pharmacy that manufactures the substance. The state is also refusing to disclose where the pharmacy is located. The state says that they are not obligated to release this information, because these types of drugs are not regulated by the FDA, but governed on a state-by-state basis.

Because the state is refusing to release this information, Smulls' attorneys are claiming that they are not able to access evidence that could potentially show that the new execution drug causes pain and suffering to the inmate.

This is not Smulls' first attempt to get himself off death row. Smulls' attorneys have already attempted to or are currently attempting to:

  • Appealed on the basis of unfairness that Smulls, a black man, was convicted by an all-white jury (appeal was denied)
  • Request clemency from Governor Jay Nixon (no word yet)
  • Request a 60-day Stay of Execution (which was denied)
  • Appeal the denied Stay of Execution with the 8th U.S. Circuit Court of Appeals

This new drug has already been used in two executions. The state stated that neither inmate showed any signs of distress during the process of lethal injection, but Smulls' attorneys still content that not enough is known about the new drug to guarantee that it would not cause an inmate pain and suffering.

Smulls was originally convicted more than 20 years ago. A jury found him guilty of first-degree murder and other charges after raiding a St. Louis jewelry store and shooting with Stephen Honockman and his wife, Florence. Stephen was killed but Florence survived the shooting.

This is no longer a criminal case, but a civil and an ethical one. Smulls', who has already been convicted of his crimes, life currently is in the hands of an appeals court. That court will decide whether the state of Missouri has to disclose information about the pharmacy that manufactures their new execution drug.