The Missouri Department of Corrections stalled and delayed rather than release public records that would expose its plans to pioneer the use of the drug propofol in executions — and now the state will need to pay for its recalcitrance.
That's according to a ruling issued yesterday
by Circuit Judge Patricia Joyce, who ruled that the state's failure to follow its own Sunshine Law was purposeful. Joyce then slapped the state with a $2,500 fine.
“The Missouri Department of Corrections violated the public’s trust, in both its plan to use questionably obtained drugs and by purposefully violating the Sunshine Law to cover up its scheme,” said Jeffrey Mittman, executive director of the ACLU of Missouri, in a prepared statement.
On August 26, 2013, the ACLU had requested information related to the Department of Corrections' inventory of propofol, its source and its packaging, labeling and instructions. The department responded that it would take about three weeks to fulfill the request.
But after that time period passed, the department's contact stopped returning the ACLU's phone calls, the judge found. The ACLU filed suit on October 4 — and by October 8 and October 18, the department released the records.
Behind the scenes, the state was apparently scrambling. The state had been planning to use propofol to execute a man named Allen Nicklasson on October 23 and another man, Joseph Franklin, in November. But, as the St. Louis Post-Dispatch would later report
, it source for the drugs wanted nothing to do with the executions.
The records showed the supplier of some of the propofol, Morris & Dickson, of Shreveport, La., had pleaded with the state nearly a year ago to return vials the company had shipped to Missouri in violation of its agreement with the manufacturer, Fresenius Kabi, of Germany, not to provide the drug for capital punishment.
The state finally returned the drug after the ACLU put the records on its web site. But it still had propofol manufactured by Hospira in stock from another supplier, Mercer Medical of suburban Seattle.
Then Hospira said it wanted its propofol back, too, because it had not authorized the sale to Mercer Medical.
The state's admissions, as forced by the ACLU, proved damning. On October 11, Governor Jay Nixon postponed Nicklasson's execution date. And soon after, the Post-Dispatch reported grimly
, Missouri announced a new execution protocol: "The state announced it would use pentobarbital, commonly used to euthanize pets."
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