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October 13, 2013

Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concerns

As reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:

Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.

Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.

"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."

Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.

The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.

In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....

Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.

Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.

In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.

Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.

The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.

Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....

Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.

October 13, 2013 at 11:35 AM | Permalink


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"In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man."

I would report these lawyers to the Disciplinary Counsel for a violation of 3.1, prohibiting the filing of a frivolous lawsuit. The substance is used as an anesthetic, because it removes all awareness, including that of being cut open, sewn up. It requires ventilatory support because it stops the breathing center. It does so in seconds once in the brain. See the case of Michael Jackson.

However, the filing of such a complaint is itself frivolous because the DC has never, ever, ever, ever enforced that rule unless filed by judge or other member of the CCE hierarchy.

The claim is an insult to the intelligence, however.

Posted by: Supremacy Claus | Oct 13, 2013 12:34:34 PM

Long term, an enterprising Prison Industry executive should get clearance from he EPA to manufacture both propofol and thiopental, as poisons, not as medications. Charge high profit fees to the states.

Part of the learning curve must include the high security needed to prevent diversion into the prisons to get high, among guards, among prisoners. The security personnel should not be allowed to have even relatives as addicts. I would keep this security loose, personally, so that the rate of overdose helps to dispatch as many violent predators as possible. If an inmate is found dead, I would not even have an investigation. However, the lawyer likes the appearance of piety, and diversion should be prevented.

Once, the errors have been worked out? Apply to become a generic drug maker, and go to town on the profits, making $billions for the Prison Industries. Decrease the cost of to the taxpayer, improve conditions and safety, increase the employability of the inmates, and give them something useful and gratifying to do, helping people. Many extremely rich people in the US became rich by finding a way to make something expensive and rare, into something cheap and common, cars, chocolate, computers.

Posted by: Supremacy Claus | Oct 13, 2013 12:48:13 PM

The infinite number of objections implies they pretextual (false). Because they also generate lawyer incomes at tax expense, they are rent seeking, a synonym for armed robbery (don't pay your tax, a man with a gun will come over and help you do so).

The pretextual nature with absolute tort immunity fully justify violent direct action against the judges allowing them at all, scheduling a hearing, agreeing with them.

The justifications are in formal logic, in utility, and in ordinary justice (self help against lawyer fraud).

I would like to see a formal organization of crime victims and families of crime victims, like an AARP, for lobbying, insurance coverage, etc. But, also to have a secret direct action arm. More like that lawyer founded and directed outfit, the KKK.

Posted by: Supremacy Claus | Oct 13, 2013 1:01:22 PM

They shoot horses don't they?
Was that a movie?

Governor Nixon ought to read the Sixth Commandment. Thou Shalt Not Kill. All of the People of the Great State of Mizzou are going to have to meet their maker at the Pearly Gates some day and when they do they will be confronted with these killings. Y'all Can't. Hell is full of former governors, judges, jurors, and lame citizens.

Posted by: Liberty1st | Oct 13, 2013 1:37:25 PM

Lib: I cannot argue with your faith, only respect it. However, we have an Establishment Clause. It prohibits using religious beliefs in our legal system.

Posted by: Supremacy Claus | Oct 13, 2013 4:00:17 PM

In the name of saving two spree killers pharmaceutical companies would deprive patients of anesthesia? How is that anything but disgraceful?

Posted by: MikeinCT | Oct 13, 2013 8:11:15 PM

I think in analogous to how the US won't allow shipping of stun guns to third world dictatorships to use for torture. There is certain behavior that is just too barbaric to support with trade.

Posted by: Boffin | Oct 13, 2013 8:49:55 PM

¿ Injections of 190 proof ethanol ?

Posted by: Just Plain Jim (Just Another Guy) | Oct 14, 2013 5:40:35 AM

"Governor Nixon ought to read the Sixth Commandment. Thou Shalt Not Kill."

The King James translation is a great work of the Golden Age of English literature, but as a translation it has some problems. Every modern translation I have found translates this commandment as "Do not commit murder" or something very close to that.

A few verses later, the penalty for murder is specified. Want to take a wild guess before you look it up?

Personally, I don't regard this text as controlling of modern criminal punishment questions, but for those who do the answer is clear.

Posted by: Kent Scheidegger | Oct 14, 2013 3:08:11 PM

Kent: If you go find the Sears Roebuck version of the Bible it will go to the "modern" version of "Please do not murder." They want to say that it is ok for The People of The Great State of Texas to Kill. This was done to protect the folks in Texas and other Y'all Can states. But, when they all go to meet their maker at the Pearly Gates they will see the sign on the wall which says: Y'all Can Not Kill.

Posted by: Liberty1st | Oct 14, 2013 4:47:07 PM

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