Governor: Europe won't block two Missouri executions

ST. LOUIS -- Missouri will move ahead with two planned executions despite efforts in Europe to block a common anesthetic from being used in the procedure, Gov. Jay Nixon said Monday.

German company Fresenius Kabi produces almost the entire supply of propofol, but the European Union is considering possible export limits as part of its anti-capital punishment policies. Missouri has enough to carry out its next two executions and one more, the first scheduled for later this month, but Nixon declined to say what the state would do if it is unable to get more propofol. The drug made headlines in 2009 when pop star Michael Jackson died of an overdose. The Missouri executions would be the first to use propofol.

Nixon said state and federal court systems, not European politicians, will decide death penalty policy in Missouri.

"A number of courts have already had an opportunity to review this matter," Nixon also said, referring to broader legal challenges to the death penalty. "We're going to continue to monitor it very closely. At this point, there's no stay in effect."

On Friday, the American Civil Liberties Union filed a lawsuit against the Missouri Department of Corrections, alleging the agency failed to comply with open records requests related to its planned use of propofol in executions.

The Missouri Society of Anesthesiologists also has urged the state to reconsider using propofol, warning that 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 U.S. Food and Drug Administration also has expressed concern about any move that would limit access to the drug. A lawsuit filed against the state by 21 death-row inmates after the new protocol was announced remains pending.

Missouri turned to propofol for executions only after the drugs it and other states previously used for lethal injection could no longer be obtained by prisons and corrections departments because drugmakers did not approve of such uses.

Most popular

Propofol is America's most popular anesthetic, according to the American Society of Anesthesiologists. About 50 million vials are administered annually in some 15,000 U.S. hospitals and clinics -- about four-fifths of all anesthetic procedures. The society said in a statement that propofol is popular because it works quickly and patients wake up faster with fewer side effects, such as postoperative nausea.

Convicted killer Allen Nicklasson is scheduled to die by injection Oct. 23 in the state's first use of propofol for capital punishment since changing its execution protocol last year. Joseph Franklin is scheduled to be put to death Nov. 20.

Speaking with reporters after a dedication ceremony for the Congressman William L. Clay, Sr. Bridge, Nixon said it's not unusual for countries to be at odds over export issues.

"You can parse down the various things that foreign countries say about products from Missouri," the Democratic governor said. "Whether it's jets made by Boeing or Roundup Ready [herbicide] from Monsanto or various things from our state. The fact is that trade agreements and trade arrangements [prompt] differences of opinion, and they touch foreign policy issues all the time, whether it's the war in Iraq or the issues involving Syria."

Until recently, Missouri and other states with the death penalty used virtually the same three-drug protocol. That changed in recent years as drugmakers stopped selling the traditional execution drugs to state corrections departments because they didn't want them used in lethal injection.

Nixon, a former Missouri attorney general, said those debating the drug's intended use also need to consider the violent nature of the crimes committed by the two death-row inmates.

Nicklasson was convicted of killing a good Samaritan who stopped to help after Nicklasson's car became disabled on Interstate 70 in 1994. Franklin is scheduled to be put to death for the 1997 shooting death of Gerald Gordon at a St. Louis area synagogue. Franklin also has been convicted of racially-motivated killings in Utah and Wisconsin, and bombing a synagogue in Tennessee.

"It's a legal process that brought us to this point," he said. "On the other side of the coin, these two folks have had a very violent life. Both of these fellows are guilty of extremely heinous crimes, and Missouri juries and Missouri courts have uniformly upheld the ultimate punishment."

The uncertainty over Missouri's execution protocol prompted Republican state Sen. Kurt Schaefer, a 2016 candidate for Missouri attorney general, to suggest last week that Nixon consider reopening the state's gas chamber. Democratic Attorney General Chris Koster brought up the same idea in July.

State statutes currently allow executions either by lethal drug or by gas, though a gas chamber no longer exists in the state. Previous executions by gas took place at the Missouri State Penitentiary in Jefferson City, Mo., which was built in 1836 and shut down a decade ago. It is now a tourist attraction, complete with tours of the old gas chamber.

------

Follow Alan Scher Zagier on Twitter at http://twitter.com/azagier