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Execution Drug Sources No Longer Public After Mo. Rule Change

A picture of propofol, a drug Mo. was planning to use for lethal injection. Under the state's new rule, showing who made or supplied the drug would be illegal.
Veronique LaCapra, St. Louis Public Radio
A picture of propofol, a drug Mo. was planning to use for lethal injection. Under the state's new rule, showing who made or supplied the drug would be illegal.

Two weeks ago, Gov. Jay Nixon instructed the Missouri Department of Corrections to come up with a new procedure for carrying out lethal injections.

On Tuesday, the department announced that it had chosen a new execution drug: pentobarbital. But the state also made a change that will end up making it harder, if not impossible, to know where the drugs come from.

It was already illegal to reveal the identity of anyone who is – or ever was – a member of the state’s “execution team.” Previously, that team was limited to medical personnel and employees of the Department of Corrections directly involved in carrying out the execution.

But on Tuesday, the state expanded the definition of “execution team” to include the suppliers of execution drugs.

The new definition of the
The new definition of the

The change comes following reporting by St. Louis Public Radio that the state obtained its previous execution drug from a supplier who wasn’t authorized to sell it. What’s more, our reporting shows that both the supplier and the state were well aware that they were violating the manufacturer’s wishes.

An email from the supplier of a potential execution drug to the Mo. Dept. of Corrections. The sales representative attached a document stating that the manufacturer no longer allowed the drug to be sold to departments of corrections. A month later, the state bought the drug anyway.
An email from the supplier of a potential execution drug to the Mo. Dept. of Corrections. The sales representative attached a document stating that the manufacturer no longer allowed the drug to be sold to departments of corrections. A month later, the state bought the drug anyway.

This information became available through an open records request by the American Civil Liberties Union of Missouri. But under the new protocol, reporting like this would be illegal.

Missouri ACLU legal director Tony Rothert said the state changed the rules because it looked bad for buying drugs from an unauthorized distributor.

“The whole purpose of that statute is to silence the debate, and to prevent other members of the public from asking questions about how executions are done in Missouri,” Rothert said.

On Wednesday, the ACLU sued the state, arguing that the new protocol violates the First Amendment.

“It would be preferable if Missouri was open and transparent about what it’s doing as far as procuring drugs to execute people with,” Rothert said. “But if they’re not going to be open and transparent we’re going to do everything we can to force them to be.”

The ACLU previously had the open records posted on their website. After Tuesday’s protocol change, the organization took the documents down.

After consulting with our legal team, St. Louis Public Radio has decided to keep our story up. The Governor’s office, the Department of Corrections and the supplier have not disputed any of the facts in our reporting.

The ACLU is hoping the courts will act quickly on their lawsuit.

“With an execution still scheduled for the end of November, we certainly think this is urgent that we again have access to this crucial public information, and make it available,” Rothert said.

The Governor’s office and the Department of Corrections have both failed to respond to our request for comment.

Update 10/24/13

When asked at a press conference about the rule change, Nixon stood by the Department of Corrections, but said that he didn't tell them to make the change.

“It’s better to talk to Corrections the process there," Nixon said. "All I did was say was, because of propofol (the previous drug) we’re not going to move forward there, so establish a new protocol. It's better to talk to Corrections about the process there.”

The Mo. Department of Corrections has still not responded to our request for comment.Follow Chris McDaniel on Twitter@csmcdaniel

Follow Veronique LaCapra on Twitter: @KWMUScience

Copyright 2013 St. Louis Public Radio

Chris McDaniel started at St. Louis Public Radio as a political reporter, predominantly covering the race between Senator Claire McCaskill and Congressman Todd Akin. Before coming to St. Louis, Chris worked at NPR stations in Louisville, Kentucky and Columbia, Missouri, and his work has been broadcast on NPR’s national newscasts. He is a proud graduate of the University of Missouri, where he studied journalism and political science. He is also the winner of the 2011 PAX East Super Smash Bros. Tournament. Chris enjoys dogs, anything by Cormac McCarthy, and listeners like you.
Science reporter Véronique LaCapra first caught the radio bug writing commentaries for NPR affiliate WAMU in Washington, D.C. After producing her first audio documentaries at the Duke Center for Documentary Studies in N.C., she was hooked! She has done ecological research in the Brazilian Pantanal; regulated pesticides for the Environmental Protection Agency in Arlington, Va.; been a freelance writer and volunteer in South Africa; and contributed radio features to the Voice of America in Washington, D.C. She earned a Ph.D. in ecosystem ecology from the University of California in Santa Barbara, and a B.A. in environmental policy and biology from Cornell. LaCapra grew up in Cambridge, Mass., and in her mother’s home town of Auxerre, France. LeCapra reported for St. Louis Public Radio from 2010 to 2016.
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