LINCOLN - Nebraska prison officials have proposed reviving the state's lethal injection procedure by giving the corrections director sweeping flexibility to carry out executions, including the authority to select the types of drugs and shield their sources from the public.
The Department of Correctional Services on Monday announced a proposed overhaul of the lethal injection protocol that Nebraska has found unworkable since it was adopted in 2009. The proposal would allow the kinds of secrecy provisions that have helped states such as Missouri, Texas and Georgia execute inmates in an era when obtaining the necessary drugs openly has become extremely difficult.
The proposal, which will require a Dec. 30 public hearing before it could be implemented, comes less than three weeks after 61 percent of Nebraska voters cast ballots to reinstate capital punishment in the state. The vote reversed the 2015 death penalty repeal enacted by state lawmakers.
"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 Monday in a statement.
Several lawyers predicted that any adopted changes will trigger new court challenges by some of the 10 inmates on Nebraska's death row. Danielle Conrad, executive director of the ACLU of Nebraska, promised to fight attempts to limit transparency.
"Both death penalty supporters and opponents should be able to agree that the most extreme use of state power should absolutely not occur in the shadows," Conrad said.
Nebraska's existing procedure requires authorities to use three drugs in the following order: sodium thiopental, which makes the inmate unconscious; pancuronium bromide, which causes paralysis; and potassium chloride, which stops the heart. Nebraska officials settled on those drugs, in part, because they were identical to the lethal injection drugs used by the federal government.
But Nebraska hasn't been able to use the three-drug process, mostly because of legal problems related to how it has obtained sodium thiopental. The state last executed an inmate in 1997 when the method was electrocution.
Nebraska's most recent attempt to obtain sodium thiopental through a broker in India was stymied when the U.S. Food and Drug Administration blocked the drug's importation.
"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," Ricketts said Monday in a clear reference to the FDA's action.
Federal officials have said that they were required to block delivery of foreign sodium thiopental to comply with federal court rulings.
The proposal issued Monday would make numerous changes and additions to the 13-page lethal injection procedure contained within the Nebraska Administrative Code. Among the key changes:
» Prison officials would no longer be bound to specific types or numbers of lethal substances. It would be up to the corrections director to decide what drugs to use and in what doses. The director also could opt for a single drug, as long as it rendered the inmate unconscious and resulted in death "without the unnecessary and wanton infliction of pain."
» The corrections director would be required to notify the condemned inmate of the types and quantity of substances the state intended to use at least 60 days before the attorney general sought a death warrant from the Nebraska Supreme Court.
» Corrections officials may obtain drugs through "any appropriate source," including from a compounding pharmacy.
» The corrections director "may" maintain confidentiality of any records or information that identifies a person, company or entity supplying the execution drugs.
» The state must employ a chemical analysis of the drugs at least 60 days before requesting a death warrant.
As pharmaceutical manufacturers have increasingly refused to sell their medications for lethal injections, some death penalty states have turned to independent compounding pharmacies to obtain execution substances. But many such pharmacies don't want their identities known, fearing pressure from death penalty opponents or a potential backlash from some customers.
At least a dozen of the 31 death penalty states have procedures or statutes that shield the identities of drug suppliers, said Robert Dunham, executive director of the Death Penalty Information Center. Nebraska's proposal is similar to those states but goes even further in granting the Corrections Department an unrestricted authority to select the execution drugs.
"It would provide Nebraska with more flexibility, but the degree of flexibility that is written into this proposal is itself an invitation for additional litigation," Dunham said.
State Sen. Ernie Chambers of Omaha, who sponsored the Legislature's repeal law, said Monday that he had not seen the proposed protocol. But he said if the proposal oversteps the intent of lawmakers who passed the lethal injection law, it could be struck down.
"They are playing politics now," Chambers said. "When a political move is made, they go overboard. They're playing to the crowd."
Mike Flood of Norfolk, the former speaker of the Legislature who led the effort to replace Nebraska's electric chair with lethal injection, said it was his intent to leave details of the execution protocol up to corrections officials. But he also said he wanted the process to be carried out in the light of day.
"This should be an open and transparent process, given the severity of this sanction," said Flood, who supports the death penalty. "But that's for a court to determine ultimately whether or not the protocol has had the benefit of due process."
In some cases in other states, judges have found secrecy rules unconstitutional, but those rulings have so far been overturned by federal appeals courts, Dunham said. The U.S. Supreme Court has not yet taken up the question but could discuss it in an Alabama death penalty case scheduled for review next month.
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, agreed that the changes proposed in Nebraska are "open ended" and "unusual" in not spelling out a list of permitted execution drugs. Death penalty opponents would undoubtedly attack that provision if it is adopted.
"The flexibility is necessary because the states have to get around these boycotts of the drug companies," he said, referring to the work of some anti-death penalty activists. "I'm sure they'll scream about it, but basically they caused the problem."
Lincoln attorney Bob Evnen, who helped lead the effort to overturn Nebraska's repeal law, said he thinks the confidentiality provisions are necessary to protect people who participate in the lethal injection process from "harassment."
Eric Berger, professor at the University of Nebraska College of Law who advocated for the repeal of the death penalty, said the state's desire for flexibility in carrying out executions could make the procedure vulnerable to legal challenges.
"Is it possible the state will be able to carry out execution in a year or two? Yes it's possible, but it's also possible executions will be on hold many years pending the outcome of litigation," he said.
The department will hold a public hearing to gather input on the proposed revisions from 9 a.m. to 2 p.m. Dec. 30 at the State Office Building, 301 Centennial Mall, in Lincoln.
Written comments must be submitted by Dec. 27 to NDCS, PO Box 94661, Lincoln, NE 68509 or they may be emailed to mark.boyer@nebraska.gov.