By Tony Rizzo, McClatchy Newspapers –
KANSAS CITY, Mo. — The state of Missouri is back in the execution business with a drug that’s never been used to put prisoners to death in the United States.
Stymied by a chemical shortage affecting every death-penalty state, the Missouri Department of Corrections said this week that it now will carry out death sentences with propofol, a widely used surgical anesthetic that also played a factor in singer Michael Jackson’s death.
Attorneys representing some of the state’s death row inmates learned of the plan Thursday, after corrections officials met with some inmates and informed them of the new protocol.
Defense attorneys said it’s too early to say what, if any, legal challenges might be mounted in regard to the new one-drug execution protocol that replaces Missouri’s previous three-drug cocktail.
“It’s something we will have to look at very carefully,” said Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City. “Propofol has no track record in executions.”
Missouri is the first state to formally adopt the use of propofol, also known by the brand name Diprivan, for use in lethal injections, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.
“No one has used it yet,” Dieter said. “Other states may have considered it.”
Deborah Denno, a law professor at Fordham University in New York and nationally known expert on lethal injection issues, called it a “pretty extraordinary development” that raises many questions.
“I would anticipate legal challenges,” she said.
Missouri’s last execution took place in February 2011. Since shortly after that, the state has been unable to obtain the anesthetic that put inmates to sleep before they are injected with two other chemicals that stop the lungs and heart. Officials also had been unable to obtain an alternative drug that some states had adopted to take its place.
With news that the corrections department had obtained a different drug, Missouri Attorney General Chris Koster on Thursday asked the state Supreme Court to set execution dates for 19 inmates. They include Michael Taylor, one of the killers of Ann Harrison, a Kansas City teenager kidnapped in 1989 while waiting for the school bus in front of her house, and Allen Nicklasson, convicted of kidnapping and killing Excelsior Springs businessman Richard Drummond in 1994 after Drummond stopped to help Nicklasson and a co-defendant when their car broke down.
Koster said in his motion that there are no legal impediments or stays now in place to stop the executions.
“Unless this court sets an execution date after a capital murder defendant’s legal process is exhausted, the people of Missouri are without legal remedy,” Koster said in his motion.
According to Supreme Court procedures, lawyers for the inmates must be given the opportunity to file responses before the Supreme Court sets execution dates.
“There is no timetable as far as when the court would rule (on dates),” said spokeswoman Beth Riggert. “The court rules when it deems it appropriate.”
Missouri and every other state using lethal injection once used the same three-drug mixture that employed sodium thiopental to anesthetize prisoners. The drug has been employed in all 68 executions Missouri has carried out since 1989.
Inmates in Missouri and across the country had filed numerous legal challenges to the method, alleging that it created the risk of inflicting cruel and unusual punishment if not administered properly. However, the U.S. Supreme Court ruled in 2008 that the method was not unconstitutional.
In early 2010, shortages of sodium thiopental began cropping up, and in early 2011 the only domestic supplier announced it would no longer manufacture the drug.
States also had difficulty obtaining it from foreign sources, and on March 27, a federal court in Washington, D.C., banned any importation of sodium thiopental and ordered the Food and Drug Administration to contact every state that it believed had any foreign-manufactured thiopental and instruct them to surrender it to the FDA. It also permanently prohibited importation of the drug.
With thiopental in short supply, some states began to substitute another anesthetic, pentobarbital, for use in the three-drug method.
In February 2011, Ohio began using pentobarbital by itself to execute prisoners. Earlier this year, Arizona became the second state to switch to one-drug executions using pentobarbital.
Dieter, with the death penalty information center, said pentobarbital has been used, either by itself or in combination with other drugs, in the last 45 executions in the United States.
But last July, its Danish manufacturer announced that it was imposing restrictions on how pentobarbital was distributed to prevent its use in executions.
Since its on-hand supply of thiopental expired in March 2011, Missouri had been unsuccessful in finding it or pentobarbital.
In announcing its new protocol this week, Missouri Department of Corrections officials did not comment on when they obtained the new drug or where it was obtained.
