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Propofol use in lethal injections sparks another Missouri lawsuit


JEFFERSON CITY, Mo. — Citing the Department’s failure to respond to sunshine law requests regarding its stockpile of the propofol drug, the American Civil Liberties Union of Missouri filed a lawsuit this week in the Circuit Court of Cole County against the Missouri Department of Corrections.

Tony Rothert, Missouri ACLU legal director
Tony Rothert, Missouri ACLU legal director

The suit comes as yet another legal challenge in the wake of the state’s announcement earlier this summer that they intend to use propofol, a powerful sedative designed for surgery, to execute death row inmates.

“We’re trying to find out exactly how the state obtained the drug, how much they have, and when it expires,” Tony Rothert, legal director for ACLU of Missouri, tells The Missouri Times.

Several death row inmates have filed suit against the Missouri DOC. Missouri is the first state set to execute a death row inmate with propofol — the next execution is scheduled for Oct. 23.

The inmates claim that the use of the drug to kill is outside the drug’s intended purpose, the manufacturer’s wishes and an untested method of execution: a violation of the Eighth Amendment.

The ACLU lawsuit is not associated with the Eighth Amendment challenge to propofol, but is wrapped in a larger debate about how Missouri can execute its death row inmates.

Attorney General Chris Koster
Attorney General Chris Koster

Attorney General Chris Koster told reporters last summer that the state only had two legal methods of execution, lethal injection and the gas chamber. Because Missouri wishes to exclusively use propofol in its lethal injections, Koster says any court blocking of the propofol use could force the state to adopt the gas chamber to carry out lawful judgments.

Missouri has three batches of propofol left, the oldest expiring in October of this year and the newest lasting until about 2015. Manufacturers of the drug in Europe — where nearly 90 percent of all propofol is made — said they will not distribute it to correctional facilities anymore.

The European Union, which strongly opposes capital punishment, is weighing heavier trade restrictions on the drug, according to various news reports.

Propofol is currently the most widely used anesthetic in the country for its powerful sedative qualities that leave patients with almost no side affects. It’s restriction in the U.S. could impact millions of surgeries a year.

The Missouri Department of Corrections did not respond to requests for a comment.