A week before condemned inmate David Hosier was put to death by lethal injection, the Missouri Department of Corrections agreed to make several accommodations at his execution, including providing a local anesthetic and sedative, to satisfy his legal team and avoid lawsuits that could tie up the process, according to a source familiar with the negotiations.
The brokering of such an agreement without litigation is not typical, sources said, raising questions about why it was done in this case.
As part of the negotiations, the DOC also placed parameters on how the execution team at the state prison in Bonne Terre could administer a lethal dose of pentobarbital to Hosier, 69. Missouri’s current execution protocol calls for the placement of primary and secondary intravenous lines, but offers no guidance on how far the staff can go to find a suitable vein, leaving inmates open to a “cutdown procedure,” a surgical method that involves cutting through tissue and using forceps to pry the tissue away from a vein for an injection.
The state DOC’s agreement with Hosier’s legal team promised to use less invasive techniques first, and if a cutdown became necessary, a local anesthetic would be administered — which the execution protocol does not currently call for. A cutdown was not used in Hosier’s case, but in the rare instances that inmates have survived execution attempts, they have described these efforts to start IV lines as excruciating.
The Missouri DOC did not respond to a request for comment.
Hosier, who was on death row for the 2009 murder of his ex-lover and her husband, was hospitalized in May and diagnosed with atrial fibrillation, which causes a highly irregular pulse. He was pronounced dead at 6:11 p.m. Tuesday, 11 minutes after the procedure began.
The DOC negotiated the accommodations with Hosier’s legal team outside of court — contrasting with the events leading up to the execution of death row inmate Brian Dorsey in April. Missouri officials agreed to allow Dorsey to receive a local anesthetic before he was put to death by lethal injection, but that was only after his legal team filed a lawsuit for the accommodation and reached a settlement.
Dorsey’s lawyers had been worried that the execution team would have trouble accessing a vein and have to resort to a cutdown because he was obese, had diabetes and was a former intravenous drug user.
“We were given sufficient assurances that Dorsey would not be in pain,” Arin Brenner, a federal public defender who represented Dorsey, said Wednesday.
Missouri’s execution protocol does not exclude the possibility of using these procedures, despite them being more invasive. In court filings in Dorsey’s case, the DOC said that “medical personnel have rarely, if ever, used a venous cut-down procedure to establish IV access during executions.” It is unclear how many other states have provisions for cut-downs in their execution protocols, as execution processes are tightly guarded.
The contents of the settlement between Dorsey and the DOC are sealed, but lawyers for Dorsey were able to share the information with other federal defenders representing clients on Missouri’s death row, opening the door for them to ask for the same accommodations, according to a source on Dorsey’s legal team.
While accommodations for inmates facing execution do happen, those negotiations are often under seal by a judge. It is unclear why, if multiple inmates have been granted these accommodations, Missouri has not added them to its official execution protocol. When changes to execution protocols are adopted, it allows inmates on death row to challenge that new protocol in court — which can delay the carrying out of sentences.
“The whole process is still largely shrouded in secrecy,” said Cheryl Pilate, a lawyer representing Missouri death row inmate Russell Bucklew, who was put to death by lethal injection in 2019.
Bucklew, who had a rare medical condition that caused blood-filled tumors in his head, neck and throat, was given special accommodations when he was executed, including first sedating him with a Valium and elevating his gurney to prevent him from choking on his blood.
The Rev. Jeff Hood, Hosier’s spiritual adviser who witnessed the execution, told NBC News that Missouri’s execution squad abided by the accommodation agreement.
“David mentioned both a local anesthetic and a sedative from the gurney,” said Hood, saying that Hosier received the anesthetic prior to the IV lines being inserted and was groggy from the sedative before his death.
Hood, an opponent of the death penalty, called on the state to make those accommodations universal.
“The State of Missouri has created precedence that their citizens facing execution should be granted the exact same accommodations that David was afforded from here on out,” he said.
Attorneys for Hosier declined to comment.
Robert Dunham, director of the Death Penalty Policy Project and special counsel at the nonprofit law firm Phillips Black, said states don’t frequently deviate from their lethal injection protocols, but it can happen occasionally either as a matter of convenience or to accommodate an inmate’s needs, or due to human error.
Sometimes, it can be especially egregious, Dunham said, as when Oklahoma executed inmate Charles Warner in 2015 while using the wrong drug as part of a three-drug regimen — and nearly did it again in the case of death row inmate Richard Glossip.
He added that it’s up to the inmate who’s being executed to request accommodations that they believe will reduce their pain, and inmates often file legal challenges when they believe states’ protocols violate their constitutional rights.
“If the idea is to avoid as much necessary pain and suffering as possible, then states should have the flexibility to do that,” Dunham said.
However, behind-the-scenes shifts in execution protocols have also been challenged in court in other states. Kentucky has not executed anyone in more than a decade due to arguments over the state’s protocols.
Hosier, a Navy veteran and EMT, was convicted in the fatal shootings of Angela Gilpin, his former lover, and her husband, Rodney, while maintaining his innocence due to a lack of eyewitnesses, fingerprints or DNA evidence tying him to the crime scene.
Prosecutors, however, portrayed him as a scorned ex who was out for revenge.
There are currently 12 inmates on Missouri’s death row. The state’s next execution is scheduled for September.
This article was originally published on NBCNews.com
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