LINCOLN (CN) – Nebraska’s corrections director faces a lawsuit after claiming attorney-client privilege when he denied records requests related to the state’s efforts to procure lethal injection drugs.
On behalf of the state of Nebraska, the ACLU of Nebraska Foundation and its legal director Amy Miller accused Scott Frakes, in his capacity as director of the Nebraska Department of Correctional Services, of violating the Nebraska Public Records Act by failing to disclose records the ACLU of Nebraska requested in late October.
In its November 2 response, a corrections official claimed the state was unable to comply with the request because the records are protected by attorney-client privilege and the supplier of the drugs is part of the state’s “execution team,” and therefore entitled to confidentiality under new corrections policies implemented late last year.
ACLU of Nebraska disputes these interpretations and specifically seeks a writ of mandamus that would compel Frakes to comply with the records requests.
In its Friday complaint, the ACLU says that it has made “regular and repeated Nebraska Public Records Act requests which are nearly identical to the requests at issue in this case” and the state had complied with all of them up until this point.
“Keeping secrets from the public won’t change the fact that Nebraska’s death penalty is broken beyond repair,” said ACLU of Nebraska Executive Director Danielle Conrad in a statement. “The state’s remedy is simple: comply with Nebraska law and make public records public.”
The matter holds special significance, as on Nov. 9 Frakes provided “notice of substances to be employed” to death row inmate Jose Sandoval. No execution date has been set for Sandoval, who was sentenced to death on five counts of first-degree murder stemming from a botched bank robbery, but an execution warrant will be requested by the state attorney general within 60 days.
Nebraska last executed a prisoner in 1997 by electric chair, but the state’s Supreme Court has since invalidated that method. The state has never carried out an execution by lethal injection.
In making its case, the ACLU of Nebraska refers to Nebraska’s recent spotty history in obtaining lethal injection drugs, such as when the state tried to buy sodium thiopental and pancuronium bromide from a small pharmaceutical company in India, ignoring warnings from the U.S. Drug Enforcement Administration in the process. Because it’s illegal to import the drugs, they never arrived in the Cornhusker state – and the compounder made off with $54,000 in public money.
“No other Nebraska state agency has been the subject of more scandals and problems in the last several years than the Nebraska Department of Correctional Services and the state prison system,” the complaint notes. “The circumstances surrounding the death penalty are certainly matters of public concern and the means of the death penalty should not be implemented in the shadows.”
Lincoln attorney Christopher L. Eickholt filed the lawsuit on behalf of Amy Miller and the ACLU of Nebraska.