Piersol previously upheld the constitutionality of Moeller's conviction and sentence, but he hadn't ruled on the constitutionality of a South Dakota Department of Corrections execution policy that was changed last year.
South Dakota previously used a three-drug protocol for executions. The change added one- and two-drug procedures as options. The two-drug protocol calls for sodium thiopental or pentobarbital to be used before pancuronium bromide is injected to stop the inmate's breathing. The three-drug procedure includes sodium thiopental or pentobarbital, followed by pancuronium bromide to stop the breathing and potassium chloride to stop the heart.
South Dakota's supply of sodium thiopental expired last month, so it's planning to use pentobarbital on Moeller.
A July court filing by the state suggests South Dakota will obtain its pentobarbital through a compounding pharmacy. Such pharmacies custom-mix solutions, creams and other medications in doses or forms that generally aren't commercially available. The pharmacy's identity and location have been sealed by the court.
The FDA considers compounding pharmacy products unapproved drugs and does not verify their safety or effectiveness. Compounding pharmacies have come under scrutiny in the wake a deadly meningitis outbreak linked to contaminated injections made by a Massachusetts specialty pharmacy.