December 22, 2014

ACLU head discusses execution protocol lawsuit

The American Civil Liberties Union of Missouri has filed a lawsuit challenging the Missouri Department of Corrections’ new execution protocol for its protections for the providers of execution drugs.

When the Department updated its execution protocol this month, it redefined who is considered a member of an execution team to include anyone who prescribes, compounds, prepares or otherwise supplies execution drugs.

Because state law prohibits naming members of an execution team, the ACLU then had to take down documents on its website regarding an earlier protocol because they include the names of suppliers and manufacturers of propofol. A member of an execution team whose identity is revealed could file a lawsuit and recover actual and punitive damages from the entity that revealed that identity.

ACLU Missouri Executive Director Jeffrey Mittman says that definition is too broad.

“This redefinition, to broadly include any member of the execution team including those who provide the drug, is an over broad and unconstitutional, as applied, restriction on free speech.”

When the ACLU publicized public documents about the supply of propofol under the previous protocol, they revealed that the state’s supply had been provided in error by two different suppliers, both of whom had been seeking their return. Missouri shortly thereafter returned its supply of propofol.

Mittman says such revelations are why the publication of such materials should be allowed.

“That’s why the Sunshine Law. That’s why a system of checks and balances. That’s why an organization committed to ensuring that government is doing its job properly is so important.”

The new protocol calls for the Department to carry out executions using the drug pentobarbital, commonly used to euthanize animals. It will be supplied by a “compounding pharmacy,” which typically mixes drugs for individual prescriptions. Mittman says those pharmacies have presented problems in the past.

“A few years back, compounding pharmacies were involved in materials that were not only not beneficial to patients, but actually harmed and in some cases killed patients. There are limited Federal Drug Administration controls over their quality, their expertise, their procedures.”

Mittman says the ACLU wants to be able to put the documents regarding the earlier protocol back up, and to be able to post documents regarding the updated protocol once it has them.

“The ACLU believes that the people of Missouri have a right to know, if the state is executing someone in their name, what procedures are being followed, how it’s being done and what policies and procedures are put into place.”

Some have cited the need for protection under the law of the identity of execution team members in order to prevent retaliation against them. Mittman says the courts have found that there are acceptable protections that are well-defined.

“There are instances where secrecy can be required and is necessary to a proper functioning government. The rule in our country has fortunately always been that if the government is going to withhold information … there needs to be a very specific reason to do that and that secrecy needs to be imposed on narrow grounds that are tailored to fit the government interest.”

Earlier this month Governor Jay Nixon cancelled the execution of convicted murdered Allen Nicklasson, that would have happened Wednesday morning, before ordering the Department to create a new protocol. His was to have been the first execution using propofol. Still scheduled is the November 20 execution of Joseph Franklin, convicted for a 1997 murder.

Mittman says the ACLU of Missouri is not planning action regarding the Franklin execution.

“Because of the importance of the issue right in front of us and right in front of the court, for now we want to focus on ensuring that we are briefing as best as possible and making the most appropriate arguments to the court.”