Protocol for Missouri executions has raised constitutional questions

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JEFFERSON CITY - After manufacturers demanded back the chemical drug Missouri plans to use for its upcoming executions, it’s not clear that the state has enough Propofol to complete both executions.

The state Department of Corrections refused to comment on the amount of the drug available after multiple requests.

John Simon, a lawyer for Allen Nicklasson, questions the constitutionality of Propofol for the use of lethal injection.

Nicklasson was convicted for murder in 1994. His execution date is set for Oct. 23.

“I can definitely say that they have enough Propofol to carry out the executions that are currently scheduled,” Simon said. “It’s the only execution protocol in the world that uses a chemical that is known to cause pain.”

Attorneys representing Nicklasson have requested a stay of execution.

Tony Rothert, Legal Director for American Civil Liberties Union for Missouri brought up issues with the remaining batch.

“One thing we don’t know is what the supply of Propofol that is left is,” Rothert said. “How much of it is already expired, how much of it is subject to a safety recall and just what the quantity is.”

Simon said Propofol could cause a severe burning sensation before death. This brings up a constitutional issue because the U.S. Supreme Court has standards for the amount of pain the government can inflict intentionally during executions.

A trial to address the issue had been set for the week of Oct. 7, but has been postponed. A date has not been set.

The Missouri judicial system gave the state a go ahead to use Propofol in the two upcoming executions without a definite answer on its constitutionality.

“The question of whether or not this method of executing people is constitutional won’t be decided until it’s already been used to kill people if the execution goes forward,” Rothert said.

The European Union has threatened to stop exports of Propofol to the U.S. Propofol is a commonly used surgical sedative that prevents post-surgical vomiting.

Nicklasson is scheduled to be put to death on Oct. 23. Joseph Franklin’s execution is set for Nov. 20. Franklin was convicted of murder in 1977 in suburban St. Louis.

Christina Turner contributed to this report.