Twenty-one men on death row — including six who may be next in line to die — say in a lawsuit that Missouri’s new lethal injection drug is unconstitutionally cruel and could force them to spend their final moments screaming in pain.
The latest challenge to the state’s long-troubled injection protocol caused the Missouri Supreme Court on Tuesday to postpone the setting of execution dates for the six, saying it would be premature with the case pending. Four of them were convicted in the St. Louis area.
At issue is Missouri’s plan to replace its three-drug execution cocktail of the past with just propofol, an anesthetic made famous when an overdose of it killed superstar Michael Jackson. The propofol would follow a non-lethal dose of lidocaine, a local anesthetic, intended to buffer potential pain.
Some others states with the death penalty also have switched to using a single drug, but none uses propofol. Illinois administered the traditional cocktail of three separately lethal drugs until it abolished capital punishment last year.
The suit was filed in June after news leaked out the month before about the Department of Corrections’ change.
“It’s an excuse to delay and, from their perspective, someday hopefully abolish the death penalty,” St. Louis County Prosecuting Attorney Robert McCulloch told the Post-Dispatch in an interview Monday, before the Supreme Court announcement. “And its a specious argument.”
But Rick Sindel, a lawyer representing four of the plaintiffs, said the state’s own expert admitted in court that propofol could cause “excruciating pain.”
“That’s probably why propofol has never been used in any other country or any other state to induce death,” Sindel said in an interview.
He complained that the Department of Corrections and attorney general’s office “surreptitiously” hatched the plan without regard for pain.
The lawsuit, filed in Cole County Circuit Court and moved this month on the state’s motion to federal court in Jefferson City, asks that a judge halt lethal injections. State lawyers asked last week for a dismissal, saying the case raises no new issues.
Spokespeople for the corrections department and Attorney General Chris Koster cited the litigation in declining to say why the protocol was changed or how propofol was chosen. Koster did issue a written statement, saying he was “disappointed” at the delay and pledged to “continue to do all we can to expedite the protocol-challenge cases.”
It’s also not clear whether propofol will be available for that purpose. In response to questions from the Post-Dispatch, one manufacturer, Fresenius Kabi, said it will not accept orders from prison systems and is “currently examining whether there may be possibilities to more tightly control access to Propofol in the United States, in order to effectively prevent it from being used for purposes other than the approved medical indications.”
A POTENTIALLY PAINFUL DRUG
The inmates’ chief argument is that propofol would cause the “unprecedented, substantial likelihood of foreseeable infliction of excruciating pain,” violating their rights with cruel and unusual suffering.
Sindel said that 60 to 70 percent of medical patients receiving propofol report pain. For some, “pain is excruciating, causing them to cry out and struggle vigorously,” or “scream at the top of their lungs,” the suit alleges.
Plantiniffs’ lawyers also have raised issues about the legality of non-doctors using lidocaine, letting corrections Director George Lombardi select the execution method and effectively changing the punishment for crimes after the fact.
Many of those claims have been rejected in court before, the attorney general’s office argued in court filings.
The state says execution pain will be addressed in two ways: using lidocaine first and injecting propofol in a large vein, since pain is more associated with smaller veins. “The use of lidocaine with propofol is the same combination of drugs used by many patients as they undergo surgery,” the defense lawyers have written.
“Plaintiffs seem to contend that despite propofol’s general acceptance and widespread use, the means of execution must have zero pain and zero risk of pain,” they continued. “Plaintiffs offer no alternative to propofol that satisfies these criteria.”
Propofol, sold as a generic and under the brand name Diprivan, is a fast-acting but short-lived milky white sedative. Fresenius Kabi says it is one of the world’s most widely used anesthetics, administered 50 million times a year in the U.S. alone.
Jackson, the singer, died in 2009 of an overdose of propofol being used as a sleep aid; his doctor was convicted of involuntary manslaughter over it.
A product label available through the Food and Drug Administration says propofol’s pain can be minimized by using larger veins or lidocaine. Doing either resulted in pain for fewer than 10 percent of patients, the label says.
But the inmates’ lawyers question whether those methods are enough to counter pain from the larger, intentionally lethal dose. Missouri plans to use two grams, which the plaintiffs claim is about 15 times the dose for ordinary sedation.
Missouri is the only state to announce plans to use propofol, according to the Death Penalty Information Center, an anti-capital punishment advocacy group.
Most states use a three-drug protocol, although they had to replace sodium thiopental because of a shortage. Use of its replacement, pentobarbital, may be at risk after the Danish manufacturer announced restrictions intended to prevent its use in executions. Pentobarbital is commonly used by veterinarians for animal euthanasia.
Richard Dieter, executive director of the center, said that unlike sodium thiopental, propofol is commonly administered and might already be used for medical care in the Missouri prison system. “So it would be hard to restrict something like that,” he explained.
Five states have used a lethal dose of a single anesthetic drug in executions: Arizona, Idaho, Ohio, Texas, and Washington. Four others, including Missouri, have announced plans to use one drug but have not executed anyone that way yet.
In 2012, 17 inmates were executed using the three-drug method and nine were executed using just pentobarbital.
A TROUBLED HISTORY
Opponents of the death penalty have long complained that it is an expensive, sometimes arbitrary penalty that does little to dissuade murder. And they have repeatedly attacked the methods used.
But Missouri has had some unique issues.
In 2006, a federal judge halted executions after the supervising surgeon revealed that he did not follow written procedures and that he was dyslexic and sometimes confused numbers.
A Post-Dispatch investigation showed that he had been publicly reprimanded by the State Board of Healing Arts, had been sued for malpractice more than 20 times and made false statements in court.
The newspaper later revealed that a nurse on the team was accused of stalking and damaging the property of a man who had a relationship with his estranged wife. The nurse pleaded no-contest to misdemeanors and received probation.
Prison officials established a written procedure and said that an anesthesiologist would supervise the procedure. In 2008, the judge allowed executions to move forward. The same year, the U.S. Supreme Court ruled that the three-drug execution method was not unconstitutional.
One man was executed in Missouri in 2009 and another in February 2011, before the process was stopped by the sodium thiopental shortage.