Nebraska resumes search for lethal injection drug suppliers

LINCOLN, Neb. – Nebraska officials have started a new search for lethal injection drugs and are backing a proposal that would allow them to conceal a supplier’s identity after voters reinstated capital punishment last year.

Corrections Director Scott Frakes said Thursday he has already “had some conversations” with potential suppliers but has not yet made any purchases. His comments came outside of a Government, Military and Veterans Affairs Committee hearing on a proposed shield law that would keep secret the identity of any lethal injection drug suppliers.

“I’ve just begun the process to see if I can obtain the substances needed to carry out the sentences,” Frakes said after testifying in support of the bill.

Gov. Pete Ricketts approved a new lethal injection protocol last month that gives the Department of Correctional Services greater flexibility to choose which drugs are used in executions. An early draft of the protocol included a secrecy provision, but Frakes said department officials removed it after deciding they first needed legislative approval.

Sen. John Kuehn of Heartwell said he introduced the measure to protect would-be suppliers from threats and public harassment from death penalty opponents. Commonly used lethal injection drugs have become scarce because many North American and European pharmaceutical companies refuse to sell drugs for use in executions.

Voters reinstated Nebraska’s death penalty in November after state lawmakers repealed it in 2015. The measure was placed on the ballot through a petition drive with substantial financial support from Ricketts, a Republican who supports capital punishment.

Kuehn, a veterinarian, said the scarcity of death penalty drugs has deprived the public of substances with legitimate medical uses. He said voters “sent a clear message to Nebraska lawmakers” that they expect a workable solution.

Of the 31 states with the death penalty, 15 have enacted similar shield laws.

Lincoln attorney Bob Evnen, a former member of Nebraskans for the Death Penalty, said lawmakers should “stop listening to the obstructionists and instead heed the wishes of the overwhelming majority of this state.”

“Nebraskans have spoken and they expect the Legislature to act now,” he said.

Opponents pointed to the department’s decision to spend $54,000 in 2015 on lethal injection drugs from Chris Harris, a broker in India with no pharmaceutical background who was unable to deliver the drugs because the federal government blocked the shipment.

Nebraska’s corrections department also has a well-established history of debacles, including a 2015 riot, the escape of two inmates last year and the miscalculation of thousands of inmate sentences, said Spike Eickholt, an attorney for the American Civil Liberties Union of Nebraska.

“Generally, nothing good in government happens in secret,” Eickholt said.

Matt Maly, a conservative death penalty opponent, said the punishment’s severity requires intense public scrutiny.

The state “is using my money,” Maly said. “That alone makes it my business.”

Many pharmaceutical companies have stopped selling the drugs not because of harassment but because they object to the death penalty, said Sen. Justin Wayne of Omaha. Wayne said he was concerned that the bill would allow the department to buy drugs without telling suppliers how it plans to use them.

Frakes told lawmakers the proposed shield law would make it easier for his department to obtain lethal injection drugs in the midst of a global shortage. The agency would still have to disclose the quantity and types of drugs in its possession.

The old protocol required the use of three drugs to render inmates unconscious, paralyze their muscles and stop their breathing and heart. It had never been used in Nebraska because of repeated legal challenges and the state’s inability to acquire sodium thiopental, one of the required drugs.

Nebraska’s last execution took place in 1997, using the electric chair. The state switched to lethal injection after the Nebraska Supreme Court declared the electric chair unconstitutional, but officials have never used the current three-drug protocol in an execution.

“I think it would be very difficult” to carry out executions without a shield law, Frakes said.

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