Nebraska's defense of execution drug keeps process "in limbo"

Excerpts of the death penalty protocol. (Photo illustration: Bill Kelly/NET News)
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December 2, 2014 - 10:48am

Five years after passing a law replacing the state’s electric chair Nebraska has been unable to proceed with an execution by lethal injection.

The video monitor inside Nebraska's lethal injection facility. (NET News/Bill Kelly)

The decision by the Nebraska Department of Corrections and Gov. Dave Heineman not to revise the state’s execution protocol put the system “in limbo” according to the attorney once responsible for defending the state’s capital punishment cases.

Kirk Brown served in the Nebraska Attorney General’s office as solicitor general for nearly 10 years He told NET News the state can’t ask for an execution warrant from the Nebraska Supreme Court “because we have to assure the court that we are prepared to carry out a warrant if we receive one.” Brown says without an identified and reliable supply of the drugs required or a change in the state’s execution protocol it would be impossible to request an execution date.

Brown says as it stands now “it’s even hard to contemplate what time frame will be involved because we aren’t going to even start running that clock until we are in a position to ask the Supreme Court for a death warrant.”

(Read Nebraska's execution protocol here)

The comments came in Brown’s first interview since retiring in May 2014 as a member of the attorney general’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 state’s electric chair.  It was replaced with lethal injection after the Nebraska Supreme Court ruled electrocution was “cruel and unusual punishment” forbidden in the state’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.

“The State of Nebraska, as I understand it, is in limbo,” said Brown.



May 28
Gov. Heineman signs bill replacing electric chair with lethal injection


January 24
Last U.S. maker of sodium thiopental will no longer sell for executions.

February 10
Gov. Heineman approves lethal-injection protocol.


January 7
Corrections officials obtain sodium thiopental from India.

January 21
Corrections announces “prepared to carry out…executions.”

April 21
Nebraska Supreme Court sets execution date for Carey Dean Moore.

DEA informs Corrections it did not have a license to legally import drug.

May 25
Moore execution postponed. Nebraska Supreme Court reviews drug source.

June 29
Nebraska obtains proper drug import license from DEA.

October 25
Nebraska acquires fresh supply of sodium thiopental.

November 3
Attorney general asks for an execution date for Michael Ryan.

November 3
Ryan asks Supreme Court to remove attorney general from case.

December 21
Nebraska Supreme Court denies Ryan request on AG removal.


January 11
Nebraska Supreme Court issues execution warrant for Michael Ryan.

February 22
Nebraska Supreme Court orders Richardson County district judge review drug supply concerns raised by Ryan.

March 2
Richardson County district judge rejects concerns about drug acquisition.

First batch of sodium thiopental expires.


October 2
Nebraska Supreme Court hears Ryan’s challenge to lethal injection drug.

October 4
AG Bruning states Nebraska needs a new lethal injection protocol.

December 2013
Lethal injection drugs expires. State unable to carry out executions.


April 18
Nebraska Supreme Court denies Ryan’s requests to delay execution.

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.

“Options that would have allowed potentially the process to move forward were not taken,” Brown said.

While the state legislature passed the law making lethal injection the state’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.

Nebraska’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 Ryan’s arguments.

The high court’s ruling came after the state’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 “that is true.”

“Hindsight is 20-20,” Bruning said. “I 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 “more priorities than just the death penalty.”

“I certainly wouldn’t criticize the idea that we didn’t try and change the protocol,” Bruning said. “I didn’t disagree with him.”

The Governor’s Office did not respond to requests for comment. 

Brown said key decisions made which have delayed executions since 2010 “would primarily rest with the executive branch.” He said when he held the position of solicitor general he advised the Governor’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 “engage in a process of litigation that we knew would take years” according to Brown.

“If 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,” Brown said.

Meanwhile death penalty opponents believe the years of delays have only strengthened support for ending the practice in the state. 

“In every way this policy has fallen apart,” said Stacy Anderson of Nebraskans for Alternatives to the Death Penalty.

“Nebraskans are smart reasonable people,” Anderson said. “They look at the fact that we haven’t executed in almost two decades now and we don’t look any closer to being able to execute, and they say ‘you know, we can probably live without this.’”

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 “when these people are safely removed from society and they aren’t a threat to us anymore.” She added even within the troubled Department of Corrections the priority to advance an execution “goes down pretty significantly” the longer the process stalls.

Attorney General Bruning agrees the delays “probably does” undermine support for capital punishment in Nebraska.

“The argument the other side makes that it’s such a hassle that we should just do away it,” Bruning said. “Every year we are unable to carry out an execution it certainly adds credence to that argument.”


For news about Nebraska's courts


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 “think it’s important to move forward with the death penalty if we have that process.”

Describing death penalty cases as “the most solemn part of the attorney general’s job” Peterson said “we have it on our books so we want to make sure we do it in this most appropriate way possible.” 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.

“We aren’t going to even start running that clock until we are in a position to ask the Supreme Court for a death warrant,” Brown said. “We certainly can’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.”



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