Missouri’s ‘execution protocol’ at heart of latest dispute

The abandoned gas chamber, above, remains at the former Missouri State Penitentiary.

The abandoned gas chamber, above, remains at the former Missouri State Penitentiary. Photo by News Tribune.

Two weeks ago, Missouri Attorney General Chris Koster asked the state Supreme Court to set aside its own order from last August, and set execution dates for two death row inmates — James Franklin and Allen Nicklasson.

On Aug. 14, 2012, in response to a previous Koster request for execution dates in six cases, including Franklin’s and Nicklasson’s, the high court noted a lawsuit had been filed “which contests the execution protocol adopted by the department of corrections on May 15, 2012. The petition in that case raises issues, among others, concerning whether the newly adopted protocol violates the constitutional ban on cruel and unusual punishment, particularly in light of the protocol’s requirement that propofol be administered to cause the death of the offender.

“Until the parties promptly resolve the issue of the use of propofol as contemplated by the department of corrections’ (execution) protocol, ruling on the motion to set execution date(s) is premature.”

Propofol is an anesthetic. It’s use/misuse was blamed as the cause of death for entertainer Michael Jackson in 2009.

But it hasn’t been used for any executions in the United States.

And its proposed use has been challenged in a Missouri lawsuit, with Koster’s office defending the state’s position.

He said last week his renewed request was made “in light of the expiration dates of the limited supply of propofol, a new judge on the court (Paul Wilson) who had not ruled on prior requests, and a new chief justice.”

When she was interviewed June 26, new Supreme Court Chief Justice Mary R. Russell declined to comment on the debate, other than saying the Missouri court was “waiting for a resolution” from the U.S. District Court.

Koster has been clear in a number of interviews — he doesn’t like the delays the legal battles have caused.

In his identical motions for execution dates in the Franklin and Nicklasson cases, Koster wrote: “For nearly a decade, the mere pendency of federal litigation — without a federal court order requiring that any execution be stayed — has been used by convicted killers as a delay tactic to prevent the State from carrying out lawful judgments. This Court’s acquiescence to such a delay tactic is a departure from historic precedent, effectively negating Missouri’s death penalty statute.”

In his news release, Koster called the legal delays “an artificial hurdle,” then added: “The Court’s current position has allowed successive, limited supplies of propofol to reach their expiration dates. Unless the Court changes its current course, the legislature will soon be compelled to fund statutorily-authorized alternative methods of execution to carry out lawful judgments.”

Koster has suggested the state could revive use of the gas chamber, which Missouri last used with gas in 1965.

In 1989, when George “Tiny” Mercer was executed, the gas chamber at the now-former Missouri Penitentiary in Jefferson City was used — but Mercer’s execution was Missouri’s first using lethal injection.

Officials at the time said they preferred using lethal injection, because the seals and gaskets necessary to keep the fatal gas from escaping from the gas chamber were badly damaged, and would need to be replaced.

Gov. Jay Nixon told reporters in St. Louis last week that Missouri doesn’t have a gas chamber currently.

Missouri and other states using lethal injection generally follow a three-drug protocol — one drug to anesthetize the prisoner and cause unconsciousness (sodium thiopental in Missouri), the second to cause paralysis and stop breathing (pancuronium bromide), and the third to stop the prisoner’s heart (potassium chloride).

A 2010 federal lawsuit sought to block that procedure in Missouri because of the drugs used.

But the U.S. 8th Circuit Court of Appeals, on May 8, 2012, stopped the case as moot (no longer subject to argument), because the U.S. maker of sodium thiopental stopped producing it — leaving Missouri unable to follow its own protocol.

A week later, the corrections department changed the protocol, adding propofol and lidocaine, another anesthetic, to the three-drug mix — and the latest lawsuit was filed just over a month later in Cole County’s circuit court, on June 26, 2012, on behalf of 21 Missouri death row inmates.

Among their complaints: The new protocol is “cruel and unusual punishment” forbidden by the U.S. Constitution’s 8th Amendment.

They argue that the state’s “intended use of lidocaine and propofol as set forth in their new protocol creates a substantial risk of severe pain or an objectively intolerable risk of severe pain that could be significantly reduced by adopting readily available alternative procedures.”

Koster recently told The Associated Press: “The premeditated murder of an innocent Missourian is cruel and unusual punishment. The lawful implementation of the death penalty, following a fair and reasoned jury trial, is not.”

Last Aug. 1, the state moved the case from the state court — where it had been assigned to Judge Dan Green but had not, yet, been scheduled for a hearing — to the U.S. District Court for Western Missouri, and assigned to Judge Nanette K. Laughrey.

Docket entries in the federal case show neither side asked for an expedited hearing, and the case now is set for a bench trial — to be heard by the judge only, not a jury — on Oct. 7, 2013, just 12 weeks from now.

But, Koster complained, waiting until federal litigation is complete may prevent the state from administering capital punishment at all.

He said the corrections department’s propofol supply is limited, and much of it will expire by next spring.

Related:

Current execution debate tied up in court fight

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