ACLU sues Missouri for records on drug used in executions

ST. LOUIS -- The American Civil Liberties Union filed a lawsuit Friday against the Missouri Department of Corrections, alleging that the agency failed to comply with open records requests related to its planned use of the anesthetic propofol in two upcoming executions.

The lawsuit, which was filed in Cole County Circuit Court, seeks unspecified damages and asks the court to require the corrections department to turn over the requested public records.

Corrections spokesman David Owen didn't respond to an emailed request for comment.

Missouri plans to execute convicted killers Allen Nicklasson on Oct. 23 and Joseph Franklin on Nov. 20. The executions would be the first using propofol, which is by far the most commonly used anesthetic.

Nearly 90 percent of the propofol used in the U.S. is made in Europe. The Associated Press reported last week that the anti-death penalty European Union is considering export limits on propofol if it is used for lethal injections. Makers of the drug say that could slow movement to the U.S. and create a propofol shortage that could endanger the well-being of patients.

ACLU Missouri Foundation officials submitted a Sunshine Law request in August for a variety of records about Missouri's supply of propofol. The request sought to determine how the state was able to obtain the drug when all the leading makers, who oppose its use in executions, refuse to sell it to prisons or corrections departments, according to the lawsuit. The request also sought records to determine the expiration date of Missouri's supply.

"There is serious doubt that the Missouri Department of Corrections lawfully or ethically possesses the drug it plans to use to end a life later this month," Jeffrey A. Mittman, the executive director of the ACLU of Missouri Foundation, said in a statement.

On Thursday, state Sen. Kurt Schaefer, R-Columbia, sent a letter to Democratic Gov. Jay Nixon saying that in light of concerns about propofol and the inability to obtain execution drugs, the governor should consider budgeting money for a gas chamber. Nixon's office declined to speak to the AP.

The Missouri Society of Anesthesiologists also has urged the state to reconsider using propofol. In a letter to corrections director George Lombardi this week, the society said Missouri "is on the verge of triggering a national drug shortage that will have a severe impact on the general welfare of the citizens of our state and our country."

The letter was part of a petition urging the corrections department to adopt a rule prohibiting it from purchasing or using any drug for lethal injection that could jeopardize use of that drug among health care providers and facilities.

Propofol made headlines in 2009 when pop star Michael Jackson died of an overdose. Missouri is the only state that has adopted propofol for use in executions.