Missouri’s attempt to pioneer the use of a popular surgical anesthetic to execute an inmate was derailed Friday after strong opposition from Europe, where the drug primarily is manufactured.
By TONY RIZZO
The Kansas City Star
Gov. Jay Nixon on Friday ordered the Missouri Department of Corrections to halt the scheduled Oct. 23 lethal injection for Allen Nicklasson, who would have been the first person ever executed in the United States with a lethal dose of propofol.
Missouri’s plan to use propofol drew warnings from its European manufacturer and American doctors that it could trigger a nationwide shortage of the drug, which is administered about 50 million times each year in the United States for procedures ranging from tonsillectomies to heart surgery.
“As governor, my interest is in making sure justice is served and public health is protected,” Nixon said in a written 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.”
The state adopted propofol as an execution drug last year after it was unable to obtain supplies of the drugs used in previous executions.
But Fresenius Kabi, a German company that is one of the world’s largest manufacturers of propofol, warned that its use would have prompted the European Union to impose “severe restrictions” on exports to the United States. About 90 percent of the drug is manufactured in Europe.
Germany’s human rights commissioner wrote a letter to Nixon last month urging him to reconsider the use of propofol as a lethal injection agent.
The letter noted that European government regulations prohibit the export of materials if they are to be used for capital punishment.
“The German Federal Government like all other states of the European Union is opposed to the death penalty as a matter of principle,” Markus Löning wrote to Nixon.
While taking no position on capital punishment, Fresenius Kabi said it opposed the use of propofol in lethal injection.
The company issued a statement Friday thanking Nixon for his action.
“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,” the company’s CEO John Ducker said in a written statement.
The Missouri Society of Anesthesiologists, which had actively campaigned against the use of propofol in executions, called Nixon’s decision a big win for their group, but a “better win for patients.”
Nixon said Friday that he has directed the Missouri Department of Corrections to modify its execution protocol to include a different form of lethal injection. He also instructed Attorney General Chris Koster to ask the Missouri Supreme Court to set a new execution date for Nicklasson.
In the wake of Nixon’s order, Koster’s office filed a motion Friday with the Missouri Supreme Court to vacate or amend the execution warrant. It asked for a new execution date to be set “soon after” the state’s next scheduled execution on Nov. 20.
Nicklasson, 41, was convicted of killing Excelsior Springs businessman Richard Drummond in 1994.
Drummond was kidnapped and killed after he stopped to help Nicklasson and two co-defendants after their car broke down along a central Missouri road. A co-defendant, Dennis Skillicorn , was executed in 2009 using a different combination of drugs.
Nicklasson’s attorney, Jennifer Herndon, said Friday that she was happy with the governor’s decision.
“All we can do now is wait and see what kind of new protocol they come up with,” she said.
Missouri’s planned use of propofol to carry out the death penalty also prompted a federal lawsuit on behalf of Nicklasson and other death row inmates. That pending suit challenged the use of propofol on constitutional grounds.
The suit alleged that inmates injected with such a large dosage of the drug faced a risk of undue suffering that would violate the Eighth Amendment protection against cruel and unusual punishment.
Kansas City attorney Joseph Luby, who is representing the inmates in the suit, said he was “relieved and pleased” by the governor’s decision. Luby said that based on the questions and possible ramifications surrounding the use of propofol, Nixon’s decision Friday was a “no-brainer.”
“Surely, the execution of one of its citizens is not so important that they would jeopardize the entire U.S. supply of a life-saving drug,” he said.
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