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Last week, Missouri’s governor, Jay Nixon — a Democrat and staunch supporter of the death penalty — put the execution of Allen Nicklasson on hold.
The Department of Corrections in Missouri was planning to use the common anesthetic propofol to carry out the lethal injection.
Propofol’s European manufacturer is opposed to using its drug in carrying out capital punishment, and has prohibited its American distributors from selling the drug to departments of correction.
However, the Department of Corrections in Missouri has domestically-produced propofol in its inventory. There are questions about how the drug was obtained.
JEREMY HOBSON, HOST:
It's HERE AND NOW. States that use lethal injections to carry out death penalty sentences are facing a shortage of the drugs they need to perform them. That's because many drug makers are ethically opposed to having their products used for that purpose. Just last week, Missouri Gov. Jay Nixon had to halt an execution using the anesthetic propofol after the European Union threatened to limit the drug's export to the U.S. if it's used in a lethal injection.
From the HERE AND NOW contributors network, St. Louis Public Radio's Veronique LaCapra and Chris McDaniel have been following the story and have this report.
ELLEN LOCKHART: OK, you're going to start getting a little bit sleepy here.
VERONIQUE LACAPRA, BYLINE: In an operating room at Barnes Jewish Hospital in St. Louis, anesthesiologist Ellen Lockhart(ph) is about to put her patient under.
LOCKHART: You think you're up for counting backwards from 10? Can you do that? OK, go ahead.
UNIDENTIFIED PATIENT: Ten, nine, eight...
LACAPRA: The anesthetic propofol is starting to flow into the patient's IV. Her voice is muffled because she has an oxygen mask on to help her breathe.
UNIDENTIFIED PATIENT: Three, two, one...
LACAPRA: And that quickly, she's out.
CHRIS MCDANIEL, BYLINE: That's part of why anesthesiologists like to use propofol: It acts fast and has few side effects. In fact, propofol is the most widely used anesthetic in the U.S. It's used, on average, 140,000 times per day for everything from colonoscopies to open-heart surgeries. Dr. Lockhart says on a busy day, she'll use it 10 to 12 times.
LOCKHART: If the patient is going to have general anesthesia, I use it every time - almost every time.
LACAPRA: The state of Missouri had planned to use propofol for a very different purpose later this month: to put someone to death. It would've been the first time the drug had been used for lethal injection.
MCDANIEL: About 90 percent of the U.S.' supply of propofol comes from Europe, and that's important because the European Union opposes the death penalty.
MAJA KOCIJANCIC: The European Union, at the moment, already has legislation in place that prevents export of certain chemicals that can be used for capital punishment.
LACAPRA: That's Maja Kocijancic, a spokesperson for the European Union. She says because of propofol's potential use for lethal injection in the U.S., the EU is considering adding it to the list of restricted chemicals.
KOCIJANCIC: Supplies to hospitals, for example, in the U.S., would continue to be possible. There would need to be an export authorization, but the export could go ahead.
LACAPRA: Kocijancic says an outright ban on propofol exports would be unlikely.
MATT KUHN: But given the steps that we would have to go through, the net effect would still be the same.
MCDANIEL: Matt Kuhn is with the German drug manufacturer that makes more of the propofol used in U.S. hospitals. He says his company would have to get an export license for every shipment of propofol it wanted to send to the States, and that process would take three to six months for each shipment.
KUHN: It would be significant enough to create lack of availability of product that would put both clinicians and patients in a very difficult spot in the U.S.
LACAPRA: Because of the potentially serious consequences, Kuhn's company, Fresenius Kabi, has already taken steps to keep propofol from being used in lethal injection. The company requires all of its U.S. distributors to sign a contract saying they won't sell to departments of correction.
MCDANIEL: But about a year ago, one of Fresenius' suppliers made a mistake. The supplier was supposed to block out all of the departments of correction from their sales list, but they missed one. They sent a container of propofol to Missouri's Department of Corrections. Once the supplier realized the mistake, it sent frantic emails to the state, pleading with them to return the drug.
For 11 months, the Missouri Department of Corrections held on to the shipment. But last week, following an open-records request by the American Civil Liberties Union, the state gave in. The department said it was returning the propofol to the supplier.
LACAPRA: Most manufacturers have joined Fresenius in condemning propofol's potential use for lethal injection, and also require suppliers not to sell it to states that would use it for capital punishment.
MCDANIEL: So that raises the question: How did Missouri get a hold of propofol when it wasn't supposed to? We've reviewed 180 pages of Department of Corrections documents obtained through a sunshine request by the ACLU.
LACAPRA: According to those records, the Missouri Department of Corrections bought 100 vials, about a half-gallon's worth, of propofol in June of this year. That propofol was made by Hospira, the only U.S. manufacturer. We reached out to the company and asked if they knew Missouri was planning to use their product to carry out an execution. In a statement, a Hospira spokesperson said...
MCDANIEL: We have been provided information suggesting that the state of Missouri has a supply of Hospira propofol, and that the state purchased it from an unauthorized distributor.
LACAPRA: That unauthorized distributor was a supplier named Mercer Medical. In April, a sales representative named Chris Rudd emailed the Missouri Department of Corrections to convince them to use his company as a vendor.
MCDANIEL: In that email, Rudd said Mercer specialized in, quote, "the delivery of products that have gone into short supply on the market." One of the drugs in short supply: propofol. A few months later, the Department of Corrections bought the propofol from Mercer. I called Rudd to discuss the sale.
LACAPRA: He hung up. Rudd and his company, Mercer Medical, never got back to us. The Missouri Department of Corrections and the governor's office have also ignored our request for comment on how the state got Hospira's propofol. Hospira has asked the state for its drug back. Last week, Missouri Gov. Jay Nixon told us the state was moving forward with the executions, as long as the courts did not intervene.
GOV. JAY NIXON: We are very cognizant of the attention this is drawing and the potential challenges that are out there, but are resolute that the issues should be ones that are played out in a court of law so that the consistency of this significant responsibility will maintain.
MCDANIEL: But last Friday, Gov. Nixon changed his mind. He announced that he had directed the State Department of Corrections to postpone this month's execution. He also said he had directed the state to modify its execution protocol to include a different form of lethal injection other than propofol.
LACAPRA: But finding a replacement for propofol might not be so easy. With most drug companies opposed to having their products used in executions, there aren't a lot of options out there. For HERE AND NOW, I'm Veronique LaCapra.
MCDANIEL: And I'm Chris McDaniel, in St. Louis. Transcript provided by NPR, Copyright NPR.