Death Penalty: New Missouri Execution Rules Prompt ACLU Lawsuit


Propofol is out and Penobarbital is in. - JOHNOYSTON
  • JohnOyston
  • Propofol is out and Penobarbital is in.

Governor Jay Nixon announced a new execution drug of choice this week, prompting the ACLU to file a First Amendment lawsuit over the Missouri's altered lethal-injection protocol.

It's illegal to release the identities of people involved in executions, such as physicians and pharmacists. When state officials changed the drug, they also changed the rules about whose identity could be protected, expanding the privilege to include suppliers of execution drugs.

"There's no basis for the government to keep the name of suppliers a secret," says Tony Rothert, ACLU's legal director of Missouri. Rothert said two other states -- Arizona and Georgia -- made similar rules that were later struck down. "We think it's unconstitutional here, too."

See also: Gas Chamber Returning to Missouri? Gov. Jay Nixon's Not Endorsing Execution Method

On Wednesday the ACLU filed a lawsuit challenging the constitutionality of protecting suppliers, especially because the group published names of suppliers on its website to bring attention to what Rothert calls "questionable practices."

View the lawsuit at the end of this story.

Allen Nicklasson
  • Allen Nicklasson

"When we got the records before and saw the questionable practices the suppliers and department of corrections were using to get execution drugs, it certainly raised a lot of serious questions -- serious enough that an execution was cancelled and the drugs returned," Rothert says.

Nixon postponed the October 23 execution of Allen Nicklasson, guilty of murdering a Good Samaritan, when the European Union, which is against the death penalty, threatened to restrict U.S. shipments of propofol, a popular anesthesia and the substance at the center of Michael Jackson's manslaughter trial, because Missouri uses it for executions.

Read Nixon's full statement:

As Governor, my interest is in making sure justice is served and public health is protected. That is why, 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, as set for October 23, will not proceed. I have further directed the Department to modify the State of Missouri's Execution Protocol to include a different form of lethal injection. The Attorney General will immediately request a new execution date for Allen Nicklasson from the Missouri Supreme Court.

Read the new Missouri execution protocol and the ACLU's lawsuit after the jump. See also: Death Penalty: Missouri to Use Propofol, Which Killed Michael Jackson, As Some Raise Concerns

Joseph Franklin is scheduled for execution on November 20.
  • Joseph Franklin is scheduled for execution on November 20.

Missouri obtained propofol mistakenly from a distributor of German drug manufacturer Fresenius Kabi, according to documents obtained by the ACLU. The distributor realized the mistake and asked for the drugs back, but Missouri held on to the drugs for eleven months.

"There's a certain degree of shadiness at the very least in how these drugs were acquired," Rothert says. "It certainly does not inspire confidence that the drugs will be lawfully or ethically obtained, or that they will even be what they're supposed to be."

Missouri chose pentobarbital, often used to euthanize pets, to replace the former execution drug.

But Missourians are no longer entitled to know where the penobarbital comes from.

"It doesn't really surprise me that they would want to keep that secret, but this is really something the public has a right to know," Rothert says.

Nicklasson's execution has not yet been rescheduled. Joseph Paul Franklin is the next person scheduled to be executed in Missouri on November 20.

Read the new Missouri execution protocol below.

MO Lethal Injection Protocal

Read the ACLU lawsuit below:


Follow Lindsay Toler on Twitter at @StLouisLindsay. E-mail the author at

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