As questions linger about Missouri's shadowy lethal-injection protocol, the state is days away from killing another inmate.

As questions linger about Missouri's shadowy lethal-injection protocol, the state is days away from killing another inmate 

As questions linger about Missouri's shadowy lethal-injection protocol, the state is days away from killing another inmate.

click to enlarge EXECUTION.jpg

Chris Gash

At 10:52 p.m. December 11, the Missouri Department of Corrections executed Allen Nicklasson with a single, lethal drug dripped into the convicted murderer's veins.

Just before the dose was administered, Missouri Attorney General Chris Koster issued a statement to the media saying that "the highest court in the nation has removed the last restriction to carrying out the lawfully imposed punishment of Allen Nicklasson."

Except, for the second time last year, that wasn't quite the case.

"Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution," said Judge Kermit Bye, of the 8th U.S. Circuit Court of Appeals, in a December 20 opinion.

Bye, a federal appellate-court judge since 1999, said the 11 judges on the 8th Circuit had not yet voted on Nicklasson's request for a stay of his execution.

Missouri put Nicklasson to death before his due process had been fully resolved.

A death-row inmate's gauntlet of appeals often takes years, and Nicklasson's run through the courts was no exception. He was sentenced to death in 1996. Death-penalty proponents say the appeals process is expensive and drags out the suffering of victims' families. But that process is designed to safeguard against the possibility of an innocent person suffering an irreversible fate — and to ensure that the death penalty is administered properly.

There was no question of innocence in Nicklasson's case. He had admitted to shooting Excelsior Springs businessman Richard Drummond in the middle of a 1994 crime spree, after Drummond offered to help Nicklasson and Dennis Skillicorn with their broken-down car. Rather, Nicklasson's attorneys were trying to figure out where Missouri would obtain the drug it intended to use on him. Is that drug, they wanted to know, suitable to kill a prisoner with a right to avoid a painful death? Nicklasson died before he got those answers.

So did serial killer Joseph Franklin. When Franklin was executed November 20, he, too, was still awaiting a final ruling from a judge on whether his attorneys could learn more about Missouri's death-penalty protocol.

"I think that because they didn't let the courts do what they were supposed to do, it undermines the authority of the court," says Rita Linhardt, board chairwoman for Missourians for Alternatives to the Death Penalty. "It's setting Missouri above the law that the court isn't allowed to do what it's allowed to do."

Bye's opinion has attracted newfound skepticism of Missouri's whack-a-mole execution methods.

State Rep. Jay Barnes, a Republican from Jefferson City, called for a hearing before the Missouri House committee on Government Oversight and Accountability over whether the state is affording condemned prisoners their due process before their executions. "Regardless of what anyone thinks of the death penalty, everyone should agree that it must be carried out according to the requirements of the Constitution and the laws of our state," he said in a January 13 statement.

That hearing was canceled when George Lombardi, director of the Missouri Department of Corrections, declined to testify.

Rep. John Rizzo, a House Democrat from Kansas City, has called for a one-year moratorium on Missouri's death penalty while the Legislature studies the Department of Corrections' actions.

But that scrutiny hasn't slowed the Department of Corrections. Herbert Smulls is the next death-row prisoner set to die. His execution is scheduled for January 29.

"The trend nationwide is away from executions, and Missouri is jumping into this full force," Linhardt says.

Missouri officials are staying quiet publicly. The Department of Corrections, Koster's office and Gov. Jay Nixon's office have all either declined or ignored The Pitch's requests for comment on Bye's decision and other questions about Missouri's death-penalty practices.

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