Last week, in the latest twist in Missouri’s difficult history with capital punishment, state Attorney General Chris Koster once again urged the state Supreme Court to set execution dates for two convicted murderers.
Reason: If they’re not executed before next spring, the batches of Missouri’s new execution drug will reach their expiration dates.
Also: Mr. Koster raised the possibility that unless the court acts, the Missouri legislature might have to bring back the gas chamber. We hope he’s not serious, but he does intend to run for governor in 2016.
The “don’t let the drugs expire before the inmates do” situation is unseemly and remarkably bizarre, but it’s happened before.
Inmates before drugs
In 2011, the state’s last remaining supplies of sodium thiopental expired. The state just got under the wire in February 2011 when Martin Link became the last man to be executed with sodium thiopental, administered as part of the three-drug protocol that had been standard for more than three decades.
The last U.S. firm that manufactured sodium thiopental had decided it would no longer sell it for use in capital punishment. In 2011, Ohio began using a single drug, pentobarbital, a barbiturate commonly used in veterinary euthanasia. Oklahoma followed suit and then so did Texas.
But Missouri announced it would be the first state to use a next-generation anesthetic called propofol. The Department of Corrections bought several batches of propofol, but the expiration dates come ever closer.
In the meantime, there are federal court challenges to its use in capital punishment, with lawyers for inmates saying it is likely to cause excruciating pain. Missouri’s Supreme Court last year put off setting execution dates until the federal challenges are settled.
Complicating things: The manufacturers of propofol are considering banning sales for use in capital punishment, too. Furthermore, one European firm that manufactures pentobarbital — the drug used in Ohio, Texas and Oklahoma — also has banned sales for capital punishment.
Irony abounds here. States went to lethal injections back in the 1980s because it was seen as more sure and humane than other manners of execution. Usually that appears to be the case, but several botched executions caused federal courts to begin reviewing the procedure.
In the meantime, globalization struck. There isn’t a lot of money in manufacturing anesthetic drugs, so U.S. drug firms ceded the market to European and Asian firms. But last year a federal court banned the use of foreign-made drugs for executions. And because of political pressure against capital punishment in Europe, drug firms began to back off sales to U.S. prison systems.
Now, because of problems in obtaining drugs for supposedly humane executions, states may revert to more tried-and-true methods.
In a press release last week announcing that he’d asked the state Supreme Court to hurry up and set execution dates for two convicted murderers, Mr. Koster warned ominously:
“The court’s current position has allowed successive, limited supplies of propofol to reach their expiration dates. 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.”
Translation: The legislature may have to buy us a new gas chamber.
Other than lethal injection, the only other “statutorily authorized alternative” method of capital punishment in Missouri is execution by lethal gas. The death penalty law is ambiguous, but it appears to give the director of the Department of Corrections the discretion to decide which method is employed.
Missouri’s old gas chamber, last used in January 1965, was located at the State Penitentiary in Jefferson City. “The Walls” was decommissioned in 2004 and is now a tourist attraction. The gas chamber is a popular stop on the tour.
The legislature is loath to spend money on new capital projects, but a new gas chamber is the sort of job-creating measure it could get behind. Two problems: (a) no one has built one in a long time and (b) if the standard is excruciating pain, death by cyanide gas may meet the standard of cruel and unusual punishment. At the very least, a new gas chamber would result in years of litigation.
Which gets the state back to square one.
Ban capital punishment
So here’s a better idea: Forget capital punishment. It is by nature arbitrary and capricious; for example, Martin Link just happened to be next in line before the last dose of sodium thiopental expired.
Trials and appeals cost millions of dollars. It does not serve to deter crime. Sometimes — not often, but sometimes — innocent people are executed. The death penalty has a certain retributive appeal, but it is not a practice fit for a great nation.
Copyright St. Louis Post-Dispatch. Reprinted with permission.