IMPORTANT UPDATE: Shortly after I posted this diary stays of execution by two different judges came through. Unsurprisingly, both hinged on the dodgy nature of the pentobarbital made by the compounding pharmacy. From the rulings:
U.S. District Judge Nanette Laughrey granted a stay on Tuesday, finding Franklin's lawyers showed the use of pentobarbital carried "a high risk of contamination and prolonged, unnecessary pain beyond that which is required to achieve death."
"Given the irreversible nature of the death penalty and plaintiffs' medical evidence and allegations, a stay is necessary to ensure that the defendants' last act against Franklin is not permanent, irremediable cruel and unusual punishment in violation of the Eighth Amendment," Laughrey wrote.
Another federal judge granted a second stay Tuesday, based on a separate defense petition contesting Franklin's competency.
"The Court concludes that a stay of execution is required to permit a meaningful review," U.S. District Judge Carol Jackson wrote.
The state is appealing both stays to the 8th U.S. Circuit Court of Appeals.
So stay tuned. There's a battle brewing here and it won't be pretty.
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IMPORTANT UPDATE 2: Franklin has been executed. The stays were lifted in the night. Time of death: 6:17AM.
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Less than four hours from now a man will be put to death here in the state of Missouri. Very few seconds will pass between midnight and his execution. Following less than a month after, another Missouri death row inmate will meet the same fate.
Even in a state like Missouri, where both houses of the republican-held legislature are a boiling test tube of cranks, wingnuttery and Tea Party insanity in the research lab of democracy, capital punishment is controversial. But these two executions are more controversial than most. There is more afoot here than ending the existence of two very bad men.
Let me first take the opportunity to state my opinion on capital punishment. I'm not a big fan. There are many reasons for this, but it really boils down to this. First, I don't see the logic in killing someone who kills someone. The argument that it will deter others from committing the act of murder has no basis in reality. Ask any murderer if the thought of capital punishment hampered their actions in any way and they'll laugh in your face. So killing them for this crime merely perpetuates the horror. It's just wrong, a crime used to punish a crime, killing to punish killing. I think the best way to punish someone in this situation is to make them live a long and miserable life. Take them away from the outside world, limit their contact with other humans, don't allow them access to a forum to promote their twisted beliefs. Keep them alive as long as humanly possible and make life as miserable and unhappy as you can without it being cruel and unusual. You will have punished them much more thoroughly than killing them. I can't think of a more miserable punishment than being locked in jail for the rest of my natural life. This is my opinion, based on nothing more than my own gut feelings and self education on the subject, so take it for what it's worth and then let's move on.
Having said that, you could not find two more deserving candidates for the death penalty than the fellow who will be put to death this evening and the one to follow shortly thereafter.
The fellow facing doom this evening is Joseph Paul Franklin. He is considered a serial killer. As a child he was severely abused, as is the case with many a man who finds himself in Franklin's position. He came to embrace a hate-filled form of Evangelical Christianity, Nazism, and the KKK early in life, and he rolled these beliefs along with his anger and propensity for violence up into a hate-filled cigarette and smoked it on the road to hell.
Franklin is the very definition of the most horrendous form of racism. Every vile act he committed could rightly be labelled a hate crime. His targets were Jews, blacks and other people of color and anyone who dared consort with people of color and/or disagreed with his twisted ideology. He fire bombed a synagogue, committed aggravated assaults on mixed race couples and robbed banks before heading out on a crime and killing spree that started in 1977 and continued for years thereafter. He confessed to doing all of these things and more, including the shooting of Larry Flynt that left him paralyzed, the justification for which seems to have been Flynt's Hustler Magazine publication of images of interracial canoodling. He was acquitted but later confessed to shooting Vernon Jordon, Jr., a prominent black activist, because Franklin observed him enjoying the company of a white woman. I could spend all day listing the people he maimed and/or killed and the crimes he committed but there is no point to that as the list is extensive and you can read it all at the links provided if you'd like. His stated reason for committing all of these crimes was to attempt to start a race war. So yeah, he's a real peach.
The murder for which he'll be put to death in the wee hours tonight occurred in 1977 when he shot and killed Gerald Gordon and wounded two others outside a synagogue in Richmond Heights, Missouri as they were attending a bar mitzvah. Hiding in the grass in a sniper position, this mostly blind yet extremely accurate gunman began his string of murders. He wasn't sentenced to death for this killing until 1997, having spent the intervening years committing other crimes and as many as 20 more murders and doing a fine job of escaping from law enforcement and evading meaningful punishment in between bouts in jail for yet more murder, robbery and assault. His legal team used a defense of diminished capacity, with testimony that he was a paranoid schizophrenic but my feeling is that this was undermined by the fact that he was a very organized killer, planning complex and detailed crimes and subsequent escapes and being quite adept at evading capture. Alas, once caught he liked to talk about his escapades and now he's between a rock and a hard place.
Next up is Allen Nicklasson. (Author's note: I cannot vouch for the veracity of this link, but the details of the account of Nicklasson are correct and so I've included it for those details.) Nicklasson was also subjected to abuse as a child and the details of his childhood are sad and disturbing. Prone to violence from very early in his childhood, he was convicted at the age of 9 for stabbing his step-father. When he was moved from the juvenile system into the adult system he asked that he not be released from prison because he could not function in civil society and was a danger to others. Nevertheless, he was eventually released and it wasn't long until he committed the murder that landed him on death row.
In 1994, Nicklasson and two companions, Dennis Skillicorn and Tim DeGraffenreid, went on a crime spree in a decrepit car which kept breaking down. A decent fellow by the name of Richard Drummond stopped to help what he assumed were three stranded motorists and was rewarded for his kindness by being marched into the woods and shot by Nicklasson. After loading the ill-gotten booty from a robbery they'd committed earlier that evening, they headed out in Drummond's car and, after booting DeGraffenreid to fend for himself, took their crime spree to Arizona where they drove into the sand and got stuck. A married couple, Joseph and Charlene Babcock, stopped to help them. As before, they were rewarded with death for their trouble. Nicklasson and Skillicorn were sentenced to death for the killings and, despite Nicklasson's pleas for mercy on behalf of Skillicorn as having not participated in the murder of Drummond, Skillicorn was put to death by lethal injection in 2009. DeGraffenreid, who was only 18 at the time of the murders, didn't participate in the killing and led police to Drummond's body, was convicted of 2nd degree murder and sentenced to life in prison.
Nicklasson was originally scheduled to be put to death on October 23 of this year, but it was delayed due to controversy over the method of execution. Missouri uses lethal injection as the method of delivering death to those they deem deserving of it, but there have been spanners thrown into the gears of lethal justice and some underhanded skullduggery involved both by the state and by those that provide the drugs used. It is this controversy that ties these two seemingly unrelated murderers and their impending deaths together. Follow me below the swirling cloud of toxic gas where we shall examine this controversy more closely.
Reasonable folk can disagree with the legitimacy of having a death penalty at all and no doubt will (have at it in comments, I'll stay out of your way.) For the purposes of digging into this controversy let's put aside our feelings about the death penalty itself and focus instead on method.
There are five methods of execution that have been used at one time or another in the various United States: electrocution, the gas chamber, hanging, firing squad and lethal injection. The majority of states have at least one form of execution, and often at least one more to fall back on. Since entering the "modern" era the primary method used by all of these states is lethal injection. Missouri is no exception, with it's original and now backup method, the gas chamber, remaining unused since 1965. For 40+ years Missouri has been lethally injecting death row inmates with a three drug cocktail and all was well in the eyes of the state.
The first spanner was dropped in the gears in January of 2011 by Hospira, the manufacturer of the three drug cocktail, when they notified those states using their cocktail that they would no longer be producing it. This left states like Missouri (and Texas and Ohio) in a pickle as to how they would end the lives of their death row inmates. After some deliberation Missouri settled on the notorious anesthetic to the stars, propofol, as the answer, and Nicklasson was scheduled to be executed on Oct 23, 2013.
Almost immediately the next spanner was pitched by the manufacturers of propofol and it's drug buddy in executions, pentobarbital, at the behest of the European Union, which regulates it drug manufacturers much better than the US does, doesn't tolerate the death penalty and takes a very dim view of their drugs being used in our executions. The EU threatened to stop all shipments of propofol to the US and since 90% of propofol is manufactured in Europe that meant the supply of propofol were going to be greatly diminished. The potential ramifications of this were huge because propofol is the most commonly used anesthetic in surgeries in this country. No anesthetic means no surgeries which means lots of miserable and/or dead people. It didn't look like Missouri was holding a very good hand and surely they would fold.
Now here is where things really start to go off the rails. I'd like to direct you to this excellent article in the Missouri Times which does a stellar job of laying out what followed. The gist is that the state of Missouri managed to get its hands on 20 vials of propofol from the supplier Morris & Dickson from Shreveport LA in 2012. Morris & Dickson said the drug was shipped by accident, but there were rumblings of possible skullduggery. At any rate, the EU had a rarefied fit, causing Morris & Dickson to spend the next 11 months begging (and I do mean begging) for Missouri to return it. During those 11 months there were 600 hospitals across the south and midwest that couldn't get their hands on propofol and their stocks dwindled. Missouri held their hostage as long as they could but in the end they were left with either returning the drug or causing great harm to a large swath of patients in the US. Missouri finally relinquished the drug.
Now enters a Washington state drug supply company, Mercer Medical LLC. Mercer told the state that it could supply Missouri with propofol manufactured in the US. The EU is not willing to let their dictates go and threatened to continue to refuse any shipments of propofol to enter the US if the drug was used in any executions no matter where it was manufactured. That was bad enough, but then Hospira (mentioned above as manufacturer of the original 3 drug cocktail) noticed that Mercer was using their supply of propofol to fulfill its contract with the state. Hospira denied that Mercer was even a vendor for their propofol, didn't know how Mercer got their hands on it and baldly stated that they wanted their drugs back. Missouri was once again reluctant to comply. At this point Hospira issued a recall for their propofol, saying the drug was tainted and therefore unsafe for use for executions. On October 11 Governor of Missouri Jay Nixon (a Democrat but "staunch supporter of the death penalty"), finally backed into a corner he couldn't get out of, halted Nicklasson's execution and returned the drug.
Having been thwarted in their desire to execute Nicklasson on October 23 and not at all willing to give up, Nixon and the powers that be announced on October 22 a new plan for executing Nicklasson and Franklin. Now the state would use the drug pentobarbital and would bypass the EU by having it manufactured by a compounding pharmacy. While compounding pharmacies can do a lot of good, making medications on an individual basis, they are not regulated by the same standards as other pharmaceutical manufacturers in this country, much less to the much more stringent standards of the EU. You may recall the incident where epidural steroid injections made at a compounding pharmacy in New England were contaminated with fungus, causing a host of illnesses, including meningitis, that led to the death of 48 people and causing hundreds to become ill in 23 states. This lack of regulation is problematic, even in cases like this where the state is actively seeking to end an inmate's life. Beyond that, the entire plan has been shrouded in secrecy, the name of the compounding pharmacy kept from the general public in an effort to hinder any backlash the pharmacy might face for participating in the death of inmates.
Nicklasson's execution has been rescheduled for December 13. Franklin will receive his lethal injection in a matter of hours, Jay Nixon having denied his request for clemency and the state Supreme Court having denied his last minute appeals. The clock is ticking, and I have little doubt that these executions will go forward as planned.
I'm left with many questions. I've explained my own reasoning regarding the death penalty and I'm sure you have your own. But what of the the drugs used? Who should have a say in which drugs are used and where they come from? Should manufacturers be able to deny the use of these drugs for the purpose of execution by basically holding hostage the well-being of innocent patients who have nothing to do with the executions, who may be in different areas of the country that have no connection with the states involved? And what of the lax regulation of compounding pharmacies? Why aren't they subject to the same regulations as other drug manufacturers? Shouldn't they be required to have their names disclosed when they take on a client they know will use their drugs to execute someone? What responsibility does the state have to disclose its actions and motives? What say does the public have in any of this?
These are some of my questions. Add your own. Discuss!
Tip of the hat to Christian Dem in NC whose diary on the weak tea legislation of compounding pharmacies of yesterday created the spark that lit the fire under my behind to write this tome.