Death penalty options limited if drug supply cut

Gov. Jay Nixon's decision to halt Allen Nicklasson's execution due to concerns over propofol does not mean the state cannot proceed with the execution, but pressures from other pharmaceutical companies may limit the state's options.

Missouri had planned to execute Nicklasson using propofol, the drug involved in Michael Jackson's 2009 death. This would have been the first time the drug was used for lethal injection in the United States. Nixon changed his mind after the European Union threatened to limit the export of propofol to the United States if it was used in lethal injections. Europe is the source of about 90 percent of America's propofol supply, and the Council of Europe, which includes all EU member nations, bans capital punishment and has campaigned actively for its abolition worldwide.

Many states previously used pentobarbital, either as part of a three-drug cocktail or on its own, to carry out lethal injections, but supplies of that drug are running short following an EU boycott, according to the British newspaper The Guardian. Ohio used its last dose of pentobarbital in an execution last month. Florida is planning an execution using midazolam. Arkansas tried to use phenobarbital in an execution but called it off after the drug's UK supplier stopped selling the drug to that state, according to the BBC.

Nixon has called on the Missouri Department of Corrections to come up with alternative methods to carry out lethal injections, but Rita Linhardt, the chair of the board for Missourians for Alternatives to the Death Penalty, said it's possible other pharmeceutical companies may try to block their products from being used in executions as well.

Without access to lethal injection drugs, most death penalty states are in a bind. According to the Death Penalty Information Center, all 35 states with a death penalty statute use lethal injection as their primary execution method. Most of those states have no other option authorized by statute. The military also is not authorized to use any other methods. Federal executions are carried out using the method authorized by the state in which the federal offense was committed. If a person was condemned under the 1988 Drug Kingpin Law, the method is lethal injection.

Several states are turning to compounding pharmacies to have their execution drugs custom-made, as Texas did for an execution it carried out on Wednesday.

A handful of states, including Missouri, have options if they cannot carry out lethal injections. RSMo 546.720 explicitly states Missouri can execute a prisoner by either lethal injection or lethal gas, though it does not specify who makes the decision. California's penal code also authorizes lethal gas if the inmate chooses this option; otherwise, the method is lethal injection. Hanging and electrocution are still authorized in a few states, though Missouri does not retain these options. No state currently authorizes execution by firing squad, although the Death Penalty Information Center reports Utah retains this option for persons condemned prior to May 3, 2004. Utah executed Ronnie Lee Gardner using a firing squad at his request in 2010.

Some Missouri officials, including Attorney General Chris Koster and Sen. Kurt Schaefer, who is running for that office in 2016, have broached the idea of bringing back the gas chamber, with Schaefer stating last week that Nixon should appropriate money for the chamber if the state cannot obtain lethal injection drugs. Missouri has not used the gas chamber since 1968.