LINCOLN, Neb. (CN) – At an early morning hearing on the Friday before a holiday weekend, death penalty opponents filled a small basement conference room to express their misgivings and opposition to a protocol for how Nebraska will carry out the executions of prisoners on death row.
Of principal concern to opponents is an overall lack of transparency and the questionable legality of the proposed protocol.
“With all due respect to who tried to throw this together, it’s clear this is a political document, not a scholarly document,” said Ernie Chambers, a nationally known state senator from Omaha who has made it his life’s work to abolish the death penalty in Nebraska.
“The governor has spent a lot of time and money to see that the state can kill somebody,” Chambers added, calling the November ballot initiative to reinstate capital punishment in the state the “hallmark achievement” of Republican Gov. Pete Ricketts. Chambers promised to introduce a bill in the upcoming legislative session to abolish Nebraska’s death penalty, something he’s done nearly every year of his 42-year career as a state senator.
While noting that multiple aspects of the “slapdash” protocol are unconstitutional, Chambers said he hoped these aspects wouldn’t be changed so “the governor will be out of office as this is still tied up in the courts.”
Most commenters pointed out aspects of the protocol that might run afoul of existing state laws, including Omaha pharmacist Allison Dering-Anderson, who said the proposed practices would be illegal for a pharmacist to perform.
“The definition of pharmacist [in the protocol] is in direct violation of Nebraska law,” she said.
Joni Cover, CEO of Nebraska Pharmacists Association, echoed these concerns by noting pharmacists are not trained nor licensed to compound lethal injection drugs in the way the Nebraska Department of Correctional Services would require, and that pharmacists are not allowed to compound or administer drugs unless they are directed to do so by a prescribing physician. The protocol seeks to give this authority to the director of corrections, who is not a doctor.
Previous procedures required the use of three drugs – sodium thiopental, pancuronium bromide and potassium chloride – to be administered in precise order and dosage. However, the new protocol removes any restrictions on corrections officials as to 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,” according to new guidelines issued by Scott R. Frakes, director of the Department of Correctional Services.
Correctional Services officials would not be required to disclose who manufactured the lethal drugs, an important factor since no domestic pharmaceutical firms will produce the drugs and the Food and Drug Administration has banned their importation.
According to the revised protocol, “substances may be directly purchased or obtained through the department pharmacy or obtained through any other appropriate source.” Likewise, the director of Correctional Services would have the discretion to keep any record confidential if it identified the source of lethal-injection drugs.
This lack of transparency is a major sticking point for opponents of the death penalty. In addition to constitutional challenges promised by the ACLU, opponents say the proposed protocol could run afoul of state open-records statutes.
Lutheran pastor Robert Bryan cited statistics showing lethal injection as the least reliable method of execution, pointing to scandals in Oklahoma and other states when drug cocktails failed to work as advertised.
“How can you test the efficacy of lethal injection? It does not make sense,” Bryan said.
Another man objected to the fact that the hearing was scheduled for a Friday morning between Christmas and New Year’s weekends, and, coincidentally, just hours before the state’s beloved Cornhuskers football team was to kickoff play in the Music City Bowl, all but guaranteeing that this hearing would not be front-page news across the state.
Two individuals did speak in favor of the new protocol, or at least urged Frakes to sort out new procedures that would overcome legal challenges.
Bob Evnen, co-founder of Nebraskans for the Death Penalty, pointed out that the state has a duty to find an acceptable way to administer capital punishment since 60 percent of Nebraska voters said they’re in favor of clearing the state’s death row backlog. Evnen said that the death penalty “remains on the books because a high proportion of Nebraskans voted to keep it there,” adding that the results of the vote must be respected.
Toward the end of the two-hour hearing, Pierce County Sheriff Rick Eberhardt urged Frakes to find a workable solution to the procedural challenges. He said “voters sent a message that Nebraska is a death penalty state” and read the names of the murder victims who were killed by the 10 men who currently sit on death row.
Nebraska last executed an inmate 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 in the state and override 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 promised.
Undeterred, Ricketts was the main financier of Nebraskans for the Death Penalty, donating over $300,000 of his own money to put an initiative on the ballot this November that restored capital punishment in the state. Referendum 426 passed with 60 percent of the vote, setting the stage for the latest step – procuring the drugs necessary to legally carry out an execution.
Whether the state is able to come up with a protocol that passes constitutional muster is yet to be seen.
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