JEFFERSON CITY — While the Missouri Department of Corrections has remained quiet about its plans to develop a new lethal injection protocol, other states also face the challenge of finding a drug or combination of drugs to use for executions.
The experiences of states such as Texas, Florida, Ohio and others shed light on Missouri’s options and the challenges it now faces.
With his delay of the execution of Allen Nicklasson, Gov. Jay Nixon bought the state a slight reprieve to develop an alternative execution protocol. But the execution of Joseph Franklin on Nov. 20 has the clock ticking for the Department of Corrections.
The state had planned to use propofol for Nicklasson’s execution, but international controversy and requests that Missouri’s supply be returned to the German manufacturer prompted Nixon to stay the execution until "soon after" Franklin's execution. Nixon also ordered the Corrections Department to develop a lethal injection protocol that doesn’t rely on propofol, a widely used anesthetic at the heart of the controversy.
Across the nation, states are seeking new drugs and methods to carry out executions, but drug manufacturers are increasingly loath to be associated with the death penalty.
"(The states) are doing a little scrambling, finding where to get that one drug and what that one drug should be," said Richard Dieter of the Death Penalty Information Center in Washington.
In Texas, executions have continued with the use of a supply of pentobarbital that was acquired from a compounding pharmacy near Houston. After the pharmacy was identified by a public record’s request, it asked Texas to return the drugs — a request the state has denied.
In Florida, a man was executed Tuesday using midazolam hydrochloride — the first execution with the drug. Florida used midazolam as the first of a three-drug injection, a method Missouri has used in the past but moved away from after manufacturers stopped supplying drugs used in that protocol.
According to Reuters, a Florida official refused to identify a research laboratory or other source of the department's scientific data used to develop the protocol, citing an exemption in state public record laws that also meant the supplier of the state’s midazolam could remain anonymous.
"We're not talking about details," said Misty Cash, a spokeswoman for the Florida Department of Corrections. "That could impact the safety and security of the process."
While the execution went off as planned, another Florida death row inmate has challenged the protocol in continuing litigation.
Manufacturers say no, forcing states to ‘scramble’ for drugs
Until recent years, states carried out lethal injections with little difficulty, using a three-drug regimen that was upheld by the U.S. Supreme Court in a 2008 case, Baze vs. Rees, but European and American drug manufacturers have begun to balk at the sale of drugs for use in lethal injection.
As states have been forced to adapt their execution protocols in response to manufacturers' concerns, they have had to look for drug supplies in less conventional places. Some states, such as Texas and Ohio, have turned to compounding pharmacies, which make prescription drugs for individual patient's needs.
Compounding pharmacies are regulated by the states, but not the U.S. Food and Drug Administration, and they have been under scrutiny from the FDA because of instances in which compounded medications have endangered public health. A nationwide meningitis outbreak last year in which 64 people died and 750 others were sickened, was traced to a tainted steroid made by a Massachusetts compounding pharmacy, according to The Associated Press.
After Texas was forced by a records request from the AP to release the identity of the compounder that supplied its supply of the pentobarbital, the pharmacy owner said he had been told the sale would be kept on the "down low" and wanted the state to return the drugs. Texas has not returned the drugs and has moved forward with using them in executions.
David Ball, a spokesman for the International Academy of Compounding Pharmacies, said the organization does not have a position on whether states should turn to compounders for lethal injection drugs but said instances of that occurring represent a tiny fraction of the industry’s business.
"(There have been) a few instances when states reach out to compounding pharmacies to compound medications for this purpose. … We are talking about a very small number of cases, where this has occurred," Ball said. "In no way do compounding pharmacies view this as a means to grow business."
With traditional pharmaceutical manufacturers no longer making their drugs available to states for use in lethal injection, states have had to search for alternative sources.
In March, the Colorado Department of Corrections sent a letter to more than 90 compounding pharmacies in that state, searching for a supply of sodium thiopental, a once commonly used drug for lethal injection that has been restricted by drug manufacturers, the Denver Post reported.
This month, Ohio's corrections department set a new policy that allows it to seek pentobarbital from compounding pharmacies, and it also added midazolam as an alternative drug to use alongside hydromorphone.
Dieter, of the Death Penalty Information Center, said the medical community has raised broad challenges to the use of common pharmaceuticals in executions and states are forced to search in less mainstream sources to supply their lethal injection needs.
"The further afield states have to go to find these drugs, the more questions it raises," he said. "If it’s not the first choice, why are you using it? Well, it’s available."
Dieter urges a thoughtful process that is open and tries to figure out the most humane way to carry out lethal injection.
"Another option would be to convene some experts and look into what would be the best practice, not just what is available," he said. "If (Missouri) is looking for a new process and wants to find a best practice, this might take some time to settle."
The Eastern Missouri branch of the American Civil Liberties Union had requested propofol-related documents from the Corrections Department in August and on Oct. 4, sued the department over its failure to release those records.
On Oct. 8, the department released a batch of records and told the ACLU it would continue searching for more records, but it has not released anything more.
As the department moves forward with developing a new protocol, ACLU spokeswoman Diane Balogh said the organization hopes the Corrections Department will be transparent as it develops a new protocol.
"We would like it to be an open process and with public input," she said. "We are hopeful they will take their time and come up with something that is a much better alternative to propofol."
Nicklasson’s attorney has asked the Missouri Supreme Court to not set a new execution date until the state has released its new protocol.
MU law professor Paul Litton, who co-chaired a comprehensive 2012 report on the state’s death penalty policies, said the death penalty carries significantly more costs to the state than pursuing sentences of life without parole and suggested that the legislature should determine how much the death penalty costs taxpayers in Missouri.
He said figuring out how much it costs is relevant whether the state considers reforming or repealing the death penalty.
Litton said that other states asked the questions, "Is all of this worth it? Is all of this money that we are spending litigating these cases, is it really worth it?"
"I’m not convinced that (other states) got rid of the death penalty because of a belief that no one deserves it," he said. "I think they got rid of the death penalty because they decided this isn’t worth it. It’s not worth the financial costs."
Although the last legislative sessions saw little action on the issue, a bipartisan group of more than 30 members of the Missouri House of Representatives supported a bill that would repeal the death penalty. Sen. Joe Keaveny, D-St. Louis, sponsored a bill that would direct the state auditor to study the economic costs of the death penalty. It failed to pass out of committee.
The development of a new protocol may force more legislative attention on the issue next year.
Attorney General Chris Koster and Sen. Kurt Schaefer, R-Columbia, have suggested the state consider reinstating use of the gas chamber, which hasn’t been used since 1965.
Litton said a switch to the gas chamber would definitely raise legal red flags.
"It’s very hard for me to believe that (the gas chamber) would pass constitutional muster," Litton said.
The Department of Corrections did not return messages requesting comment, but it told the AP on Tuesday that there had been no new developments in the search for a new protocol.
The Associated Press contributed to this report.
Supervising editor is Gary Castor.