Nebraska’s defense of execution drug keeps process “in limbo”
December 3rd, 2014
Five years after passing a law replacing the stateâ€™s electric chair Nebraska has been unable to proceed with an execution by lethal injection.
Lincoln, NE – The decision by the Nebraska Department of Corrections and Gov. Dave Heineman not to revise the stateâ€™s execution protocol put the system â€œin limboâ€ according to the attorney once responsible for defending the stateâ€™s capital punishment cases.[audio:https://kvnonews.com/wp-content/uploads/2014/12/bill-kelly-death-penalty.mp3]
Kirk Brown served in the Nebraska Attorney Generalâ€™s office as solicitor general for nearly 10 years He told NET News the state canâ€™t ask for an execution warrant from the Nebraska Supreme Court â€œbecause we have to assure the court that we are prepared to carry out a warrant if we receive one.â€ Brown says without an identified and reliable supply of the drugs required or a change in the stateâ€™s execution protocol it would be impossible to request an execution date.
Brown says as it stands now â€œitâ€™s even hard to contemplate what time frame will be involved because we arenâ€™t going to even start running that clock until we are in a position to ask the Supreme Court for a death warrant.â€
The comments came in Brownâ€™s first interview since retiring in May 2014 as a member of the attorney generalâ€™s staff. Attorney General Jon Bruning replaced Brown as Solicitor General in 2012 and named him senior assistant attorney general. Responsibility for death penalty litigation was assigned to others in the office.
There are 11 men on death row in Nebraska. There has not been an execution in the state since 1997. Robert Williams was the last person to die in the stateâ€™s electric chair. It was replaced with lethal injection after the Nebraska Supreme Court ruled electrocution was â€œcruel and unusual punishmentâ€ forbidden in the stateâ€™s Constitution.
Since lethal injection was approved in 2009 executions have been on hold because of legal challenges, and problems getting and keeping one of the essential drugs.
â€œThe State of Nebraska, as I understand it, is in limbo,â€ said Brown.
While problems getting the required drugs have been well documented, Brown maintains it was decisions made by Gov. Dave Heineman and the Department of Corrections which put the process on hold for the past several years.
â€œOptions that would have allowed potentially the process to move forward were not taken,â€ Brown said.
While the state legislature passed the law making lethal injection the stateâ€™s approved method of execution, creating a protocol specifying the process is the responsibility of the director of the Department of Corrections with the approval of the governor. That protocol was approved by Gov. Heineman in 2010.
Nebraskaâ€™s lethal injection protocol begins with a three gram dose of sodium thiopental, a medication used to induce a medical coma. Two more drugs are administered to paralyze the body and stop the heart.
Sodium thiopental became increasingly difficult to obtain when major pharmaceutical companies decided to no longer sell the drug for use in executions.
With no American supplier available, Nebraska prison officials imported a batch though a source in India. Lawyers for convicted cult killer Michael Ryan, on death row since 1986, raised objections to the process Nebraska used to obtain the drugs. After three years of legal wrangling, the Nebraska Supreme Court rejected Ryanâ€™s arguments.
The high courtâ€™s ruling came after the stateâ€™s supply of sodium thiopental had expired. The acquired drugs could no longer be used legally. The attorney general was prepared to request an execution date for Ryan but Nebraska was again without the sodium thiopental specified in the protocol.
Nebraska is the only state requiring three specific drugs in its execution protocol. Five states using other methods carried out executions in 2014.
Bruning says despite the state having the option to change the Department of Corrections procedures a decision was made to stick with its defense of sodium thiopental in the courts. Asked if simply changing the execution protocol in advance of the Ryan case could have kept the issue out of court Bruning said â€œthat is true.â€
â€œHindsight is 20-20,â€ Bruning said. â€œI wish we had redone the protocol.”
Bruning said he advised the governor he could avoid a lengthy legal battle by rewriting the rules. He also said he understands the any governor has â€œmore priorities than just the death penalty.â€
â€œI certainly wouldnâ€™t criticize the idea that we didnâ€™t try and change the protocol,â€ Bruning said. â€œI didnâ€™t disagree with him.â€
The Governorâ€™s Office did not respond to requests for comment.
Brown said key decisions made which have delayed executions since 2010 â€œwould primarily rest with the executive branch.â€ He said when he held the position of solicitor general he advised the Governorâ€™s Office that changing the protocol could avoid court challenges on this issue. By going to court to defend the use of sodium thiopental the Department of Corrections elected to â€œengage in a process of litigation that we knew would take yearsâ€ according to Brown.
â€œIf a different set of choices been made at that time, we would have, in my judgment, within certainly six months to a year, been in a position to carry out an execution,â€ Brown said.
Meanwhile death penalty opponents believe the years of delays have only strengthened support for ending the practice in the state.
â€œIn every way this policy has fallen apart,â€ said Stacy Anderson of Nebraskans for Alternatives to the Death Penalty.
â€œNebraskans are smart reasonable people,â€ Anderson said. â€œThey look at the fact that we havenâ€™t executed in almost two decades now and we donâ€™t look any closer to being able to execute, and they say â€˜you know, we can probably live without this.â€™â€
She said proceeding with executions becomes less of a priority for everyone involved the longer the state delays carrying out a state-sanctioned death.
Anderson argued the urgency to use the death penalty diminishes inside and outside of the prison system â€œwhen these people are safely removed from society and they arenâ€™t a threat to us anymore.â€ She added even within the troubled Department of Corrections the priority to advance an execution â€œgoes down pretty significantlyâ€ the longer the process stalls.
Attorney General Bruning agrees the delays â€œprobably doesâ€ undermine support for capital punishment in Nebraska.
â€œThe argument the other side makes that itâ€™s such a hassle that we should just do away it,â€ Bruning said. â€œEvery year we are unable to carry out an execution it certainly adds credence to that argument.â€
The death penalty cases will be the responsibility of a new set of elected officials starting in January.
The state legislature reconvenes with 18 new members. There will be a fresh attempt made to replace the death penalty with life without parole.
Governor-elect Pete Ricketts noted his support for the death penalty throughout his campaign. A number of people familiar with Corrections issues told NET News repairing damage done by the current criminal sentencing scandal will take a much higher priority than revising the execution protocol.
Doug Peterson, the newly elected attorney general, told NET News he does â€œthink itâ€™s important to move forward with the death penalty if we have that process.â€
Describing death penalty cases as â€œthe most solemn part of the attorney generalâ€™s jobâ€ Peterson said â€œwe have it on our books so we want to make sure we do it in this most appropriate way possible.â€ Among his concerns is assuring the process used in Nebraska does not result in the type of long and, some claimed, painful lethal injection deaths prompting reviews of the drugs and procedures used in Ohio and Oklahoma.
A Corrections spokesperson would not confirm if the state has a source for sodium thiopental. Without a known source former solicitor general Brown says Nebraska cannot move forward with executions.
â€œWe arenâ€™t going to even start running that clock until we are in a position to ask the Supreme Court for a death warrant,â€ Brown said. â€œWe certainly canâ€™t ask for an execution warrant at this point and time because we have to assure the court that we are prepared to carry out a warrant if we receive one. It is my understanding at this point and time, we are not.â€
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