UPDATE: Gov. Nixon delays execution, asks for new lethal injection protocol

Saturday, October 12, 2013 | 3:48 p.m. CDT
The death chamber at the Missouri Correctional Center in Bonne Terre, Mo., is shown April 12, 2005. Missouri Gov. Jay Nixon is halting the execution of convicted killer Allen Nicklasson, citing concerns about the use of propofol as an execution drug.

*This story has been updated to include more information about Missouri's propofol supply and other lethal injection protocols.

COLUMBIA — Gov. Jay Nixon announced Friday the execution of Allen Nicklasson will be delayed, and he requested a new execution protocol be developed.

The state had planned to have the first-ever lethal injection using propofol Oct. 23. Despite Nixon's reversal from previous statements, questions remain about how Missouri acquired its propofol and what method it will adopt for upcoming executions.

“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 will not proceed," Nixon said in a statement Friday.

The statement also said Nixon had directed the Department of Corrections to "modify the (state's execution protocol) to include a different form of lethal injection."

Attorney General Chris Koster on Friday requested a new execution date from the Missouri Supreme Court. The execution of another death row inmate, Joseph Franklin, has been scheduled for Nov. 20.

Koster filed a motion Friday with the court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution.

The state was planning to use a lethal injection of the common anesthetic propofol, but controversy has swirled around the drug's use.

On Tuesday, the Corrections Department released a batch of propofol-related records.  The American Civil Liberties Union had sued the Corrections Departments for release of the records. More records were expected to be released.

The Corrections Department announced Wednesday that it was returning one set of vials that had been produced by a German company to the Louisiana-based distributor that sold the propofol vials to Missouri. The records show the distributor had asked Missouri to return the vials in November, saying the drugs had been sold to the state because of a "system failure."

According to The Associated Press, in a statement, the German manufacturer, Fresenius Kabi, applauded Nixon's move. The company and officials with the European Union said all propofol exports could be restricted if it were used for lethal injection.

"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.

On Thursday, an American manufacturer, Hospira Inc., said that Missouri had received vials of its propofol from an "unauthorized distributor" and requested the state return the drug. According to the records, Missouri purchased 100 vials of propofol in June from the Washington-based Mercer Medical, a third-party pharmaceutical vendor. A Hospira spokesman said Thursday that the company did not sell the propofol to Mercer and wasn't sure how they got it.

In a statement Friday, Mercer said it had requested the Corrections Department return the propofol, and Mercer would return the drugs to Hospira.

The AP reported that 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.

While it remains unclear what new protocol the Corrections Department will adopt, many states use a lethal dose of pentobarbital for their executions. Arizona and Texas used the drug for an execution as recently as Wednesday, but the drug's European manufacturer has refused to sell it for executions, and states have turned to compounding pharmacies to supply their needs.

Nicklasson was convicted of the first-degree murder of a man who stopped to help after Nicklasson's car broke down on a highway in 1994.

Franklin, a drifter from Alabama, was convicted in the 1977 sniper shooting of Gerald Gordon as a crowd dispersed from a bar mitzvah in suburban St. Louis. He has said he tried to start a race war by traveling the country shooting people. When he confessed in 1994 to the shooting, he was serving several life sentences in a federal prison for killing two black joggers in Salt Lake City and an interracial couple in Madison, Wis., and the bombing of a synagogue in Chattanooga, Tenn., according to the AP.

Supervising editor is Jeanne Abbott.

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