The pentobarbital worked.
It was a 5 percent solution, mixed by an anonymous compounding pharmacy, a dose 50 times stiffer than what is needed to put an insomniac to sleep, two syringes sweeping the lethal waters into the veins of serial killer Joseph Paul Franklin Wednesday morning at the state prison in Bonne Terre, Mo.
This was the first time that pentobarbital, a common anesthetic, had been deployed alone in a Missouri execution. Its debut was hasty, announced by the state only a month ago and tweaked again in recent days after other drugs were ruled out for varying reasons. And this new drug protocol was part of the focus of last-minute court appeals and one judge’s stay, delaying Franklin’s death by several hours. His lawyers questioned whether the drug, created by a special pharmacy, would cause undue pain and suffering.
“That issue did not die with Joseph Paul Franklin,” said attorney John Simon of St. Louis, a member of the condemned man’s legal team. “The door is still open for everyone other than him.”
That would be the 20 remaining death-row inmates suing the state in federal court over Missouri’s methods of lethal injection. They still plan to challenge this new compound, Simon said.
But at 6:07 a.m., the pentobarbital flowed. The three media witnesses noted that Franklin took a few breaths, swallowed once and then appeared to stop breathing. He was pronounced dead at 6:17 a.m. The state apparently did not need to use a second lethal dose it had on standby if Franklin lingered.
Franklin, 63, was convicted of killing eight people and was linked to at least 10 other slayings between 1977 and 1980. The paranoid schizophrenic targeted blacks and Jews. He bombed a synagogue in Chattanooga, Tenn. He shot and paralyzed Hustler Magazine publisher Larry Flynt in Georgia. He was sentenced to death for the sniper killing of Gerald Gordon, of Chesterfield, outside a synagogue in Richmond Heights in 1977.
Missouri officials did not settle on pentobarbital with ease. For years, its lethal injections were accomplished with a three-drug cocktail. But then it and other states ran into trouble obtaining sodium thiopental.
Last year, the state announced it had a solution: propofol. It is best known as the anesthetic that caused superstar singer Michael Jackson’s fatal overdose. But the bulk of the propofol supply is made in Europe, which threatened to curtail shipments if Missouri used it to kill prisoners. That could have hurt the drug’s therapeutic use in hospitals.
So, last month, Gov. Jay Nixon turned to pentobarbital. At least 13 states have used the drug in executions, according to the Death Penalty Information Center, a Washington, D.C., advocacy group. Ohio was the first to use it alone to kill a condemned prisoner in 2011.
Missouri planned to sidestep any supplier problems by having the drug created by a compounding pharmacy, where drugs are made for individual prescription-holding clients. Missouri is among six states that have turned to compounding pharmacies for execution drugs.
In Missouri, the pharmacy would be part of the official execution team, so its identity would remain a secret.
It seemed like a perfect run around recent stumbling blocks.
Attorneys for death row prisoners, including Franklin, seized on the tactic. They asked, how does anyone know if this drug is made to regulatory specifications, that it’s free of contaminants?
“It’s not about just pentobarbital, but compounding pentobarbital,” Simon said. “We want them to prove it’s a reputable pharmacy.”
On Tuesday, U.S. District Judge Nanette K. Laughrey in Jefferson City put a hold on Franklin’s impending execution, in part because of concerns about the compounding pharmacy, writing the evidence “suggests a high risk of contamination and prolonged, unnecessary pain beyond that which is required to achieve death.”
It was a line of reasoning that surprised Rasma Chereson, a St. Louis College of Pharmacy professor and compounding expert. From a technical point of view, creating a pentobarbital solution is simple. The active ingredient is a powder. It is mixed with sterile fluid. The risk of contamination is very small.
Early Wednesday morning, a federal appellate court overruled Laughrey, clearing the way for Franklin’s execution. The Supreme Court upheld the appellate ruling.
Simon, one of Franklin’s attorneys, was undeterred. He said the use of compounded pentobarbital was not validated Wednesday morning.
“Whether this works one time or not,” he said, “is not the issue.”