Nebraska Finds New Route to Death Drugs

Ted Wheeler

LINCOLN, Neb. (CN) — State voters having approved a ballot measure restoring capital punishment, Nebraska on Monday announced the process it will use to change its policies and procure the drugs it will use to execute its 10 inmates on death row.

“Nebraskans were decisive in their choice to maintain the death penalty and it is now our duty as elected officials to carry it out,” Gov. Pete Ricketts said in a statement.

“These proposed changes in protocol balance appropriate inmate notification with the flexibility to utilize various constitutionally approved drugs, so political maneuvers at the federal level can’t circumvent the will of the people,” said Ricketts, a first-term Republican.

Previous procedures required three drugs — sodium thiopental, pancuronium bromide and potassium chloride — to be administered in precise order and dosage.

The new protocol will remove any restrictions on what drugs can be used for lethal injection, provided that “the substance or substances can be intravenously injected in a quantity sufficient to cause death without the unnecessary and wanton infliction of pain,” Department of Correctional Services Director Scott Frakes said in a statement.

Prison officials must notify the condemned inmate of the drugs to be used at least 60 days before an execution warrant is issued by the Nebraska Supreme Court.

Officials will not be required to publicize who manufactured the lethal drugs, an important factor, domestic pharmaceutical firms have refused to produce some lethal injection drugs, and the Food and Drug Administration has banned the importation of some lethal drugs.

Under the revised protocol, “substances may be directly purchased or obtained through the department pharmacy or obtained through any other appropriate source.” The director of Correctional Services will have the discretion to keep records confidential if they identify the source of lethal injection drugs.

This lack of transparency promises to be a sticking point for opponents of the death penalty, and the subject of future litigation.

“The ACLU of Nebraska stands ready to fight against any effort to cloak Nebraska’s broken death penalty in secrecy,” ACLU of Nebraska executive director Danielle Conrad said in a statement.

“Regardless of how people feel about the death penalty we should all agree that Nebraskans value government transparency and accountability in all matters. In fact, inscribed right on our state Capitol is ‘the salvation of the state is the watchfulness of the citizens.’ As citizens, we can’t complete that duty if the government only offers us selective information, editing out all the ugly parts.”

The state has had a tumultuous recent history with the death penalty. Nebraska last executed a man in 1997, when Robert Williams went to the electric chair. That method of execution was declared unconstitutional by the Nebraska Supreme Court in 2008. The state changed to lethal injection by legislative action a year later, only to see two of the three necessary drugs expire before they could be used.

In 2015, the issue was a persistent thorn in the side of Gov. Ricketts, who watched as the Legislature voted to abolish capital punishment, then overrode his veto a week later. Ricketts has repeatedly sought to obtain the three-drug cocktail, but one of the drugs is no longer produced in the United States. Ricketts and corrections officials contracted with a small pharmaceutical broker in India to import the drug, despite objections from the ACLU and warnings from the FDA that it is illegal to import sodium thiopental.

The FDA subsequently blocked shipment of the $54,400 order from India, as it said it would.

Undeterred, Ricketts was the main financier of the pro death penalty group Nebraskans for the Death Penalty, donating more than $300,000 of his own money, to put an initiative on the Nov. 8 ballot that restored capital punishment in the state.

Referendum 426 was approved with 60 percent of the votes, setting the stage for the latest step: procuring the deadly drugs.

A hearing and forum for public comment on the revised execution protocol is set for Dec. 30 from 9 a.m. to 2 p.m. at the state office building in Lincoln.

For written submissions to be part of the record, they must be received by the Nebraska Department of Correctional Services on or before Dec. 27.

They can be mailed to NDCS, PO Box 94661, Lincoln, NE 68509 or emailed to mark.boyer@nebraska.gov.