Will the future of capital punishment in Missouri depend on an archaic relic from the past?
By TONY RIZZO
The Kansas City Star
The gas chamber, long ago dismantled but still on the books as a method of carrying out death sentences in the state, could be resurrected as an unintended consequence of the Missouri Supreme Courts refusal to set execution dates, according to Missouri Attorney General Chris Koster.
The courts ruling last year that setting execution dates was premature while a legal challenge to the states lethal injection protocol is pending is effectively negating Missouris death penalty statute, Koster argued in a motion filed Monday with the court.
Waiting for that litigation to run its course in federal court could result in the states limited supply of the execution drug propofol expiring on the shelf unused, Koster said in the motion.
This court should not allow the mere pendency of ongoing federal litigation to effectively eliminate capital punishment in Missouri simply because the lawsuits outlast the departments supply of propofol, according to the attorney generals motion.
Koster said in a phone interview Tuesday that such litigation in death penalty cases is likely to always be ongoing.
We are simply left with an open-ended future of a law not being enforced, he said.
In the motion, Koster asked the Supreme Court to set execution dates for Joseph Paul Franklin and Allen Nicklasson, both of whom have exhausted appeals of their convictions and death sentences.
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 said.
The only methods of execution authorized by statute in Missouri are by the administration of lethal gas or by means of the administration of lethal injection, the state law says.
It may be the last option we have to enforce Missouri law, Koster said Tuesday.
The last gas chamber execution in Missouri was carried out in 1965. After a U.S. Supreme Court ruling in 1972 halted executions across the country, Missouri and other states rewrote their capital punishment laws and turned to lethal injection as the primary method of carrying out death sentences.
Although its chamber has been dismantled, Missouri never removed the lethal gas option from the law.
In recent years, states have experienced problems in obtaining drugs used in lethal injections because pharmaceutical companies increasingly have objected to their use in executions. Executions also have been delayed because of legal challenges to lethal injection procedures and drugs.
Missouri has carried out only two executions since 2005. The most recent was in February 2011.
The inability to obtain new supplies of the drugs it previously had used prompted the Missouri Department of Corrections last year to rewrite its procedures to use the anesthetic propofol. Though widely used in surgical procedures, the drug never has been used to execute prisoners in the United States.
Missouris protocol calls for an amount of propofol that is 15 times more than typically used as a surgical anesthetic, according to Joseph Luby of the Kansas City-based Death Penalty Litigation Clinic.
That amount has never been intentionally injected into a human being anywhere, Luby said.
A lawsuit filed on behalf of 21 Missouri death row inmates is pending in federal court in Kansas City.
Franklin and Nicklasson, the men for whom Koster is seeking execution dates, are among those prisoners.
Nicklasson was sentenced to death for the 1994 killing of Richard Drummond, who was shot to death after he stopped to help Nicklasson and two others after their car broke down on Interstate 70. Co-defendant Dennis Skillicorn was executed in 2009.
Franklin was convicted in 1997 of killing a man and wounding two others in a parking lot outside of a St. Louis-area synagogue. Franklin also was convicted of several racially-motivated killings in other states and the bombing of a synagogue in Tennessee.
The federal suit maintains that the use of propofol violates the prisoners constitutional protection against cruel and unusual punishment.
According to court documents filed by Luby and other attorneys representing the inmates, medical experts have said that a large percentage of patients experience pain upon the injection of even the small amount of propofol typically used in surgery.
The federal judge presiding over the suit has twice denied motions by the state to dismiss the case, stating that if the facts they present are true, then the use of propofol presents a substantial risk of inflicting unnecessary pain.
Luby said the Missouri Supreme Courts decision to delay setting execution dates was not just because the civil suit is pending but because it involves a new protocol that is untested and problematic.
Since Missouri announced it intended to use propofol in executions last year, no other states have used it or indicated that they were considering it, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.
Over the last two years, every lethal injection in the United States has been carried out using the drug pentobarbital, according to Dieter. But most states are reporting difficulties in obtaining new supplies.
Theres a lot of uncertainty, he said. Drug manufacturers dont want to get involved in U.S. executions.
Despite the problems in obtaining lethal injection drugs, Deiter said he did not foresee states going back to older methods like the gas chamber.
Its not clear that they would be upheld constitutionally, he said.
Missouri is one of only four states that has the gas chamber as a secondary method of execution. The last time lethal gas was used in an execution was in Arizona in 1999.
Missouri used it from 1938 to 1965 to execute 39 prisoners.
The airtight chamber contained perforated steel chairs. The condemned prisoner was restrained with leather straps. Crocks containing sulfuric acid were placed underneath the prisoner, and the warden used a lever to drop cyanide pellets into the acid to create the lethal gas.