The Legislature's Judiciary Committee has some questions for Prisons Director Scott Frakes concerning the state's procedures for crafting its lethal injection protocol.
Judiciary Committee Chairwoman Laura Ebke has asked for and received permission from a legislative board to subpoena Frakes to come to a hearing and answer those questions. But, she said, she hoped he would come in voluntarily.
Friday, Frakes said he did not plan to attend the May 8 hearing.
He sent a letter to Ebke formally turning down the committee's invitation, on the advice of the department's attorneys, he said.
People and institutions are lined up on various courts' runways with pending lawsuits regarding the lethal injection protocol, decisions not to disclose the sources of lethal injection drugs, and the status of the death penalty law in Nebraska and condemned prisoners' sentences.
The Journal Star and other media outlets have filed suit themselves, seeking to force the department to turn over public records on the execution drugs and the sources of those drugs. Other pending lawsuits were filed by ACLU of Nebraska, death row inmates, and Sen. Ernie Chambers and the Rev. Stephen Griffith.
Opponents of the death penalty have promised other lawsuits in the near future, Frakes said.
Ebke contacted Frakes last week about appearing before the committee, but hadn't received a timely reply. So while she continued to try to reach him, the committee requested and received permission this week to subpoena him.
Members of the Legislature's Executive Board voted 5-3 Wednesday to give that authority to the committee.
The questions for Frakes, director of the Department of Correctional Services, were prompted by a formal complaint Chambers filed with the Executive Board in March. He charged that the lethal injection protocol violates federal drug laws and constitutional prohibitions against cruel and unusual punishment.
It also violates Nebraska's Administrative Procedure Act, he said.
The board forwarded the complaint to the Judiciary Committee, which sent the letter to Frakes asking him to appear.
Ebke said Friday afternoon she will talk to committee members and attorneys over the weekend and decide early next week what action to take, and when.
Committee members want to ask Frakes about the issues brought up in Chambers' complaint.
Chambers said the protocol violates required registrations for handling controlled substances, and the department has violated the Nebraska Public Records Act by refusing to provide information on the lethal injection drugs the state has obtained.
His complaint said the protocol includes a paralytic drug that will cause cruel and unusual punishment in violation of both the U.S. Constitution and the Nebraska Constitution.
Chambers also said the department did not allow members of the public to view the rule-making record, draft and working copies of the lethal injection protocol, as required.
Ebke said she didn't think anyone had any illusions that the complaint would change efforts being made by Gov. Pete Ricketts' administration to move forward on carrying out an execution.
"We're just trying to make sure that the process was followed," she said. "If the state is going to put someone to death, then we ought to at least make sure that we're following our own rules for doing so."
In 2013, the Legislature put into law the authority for all its committees — special and standing — to issue subpoenas. They would have to receive approval by a majority vote of the Executive Board to issue a subpoena with regard to a specific inquiry or investigation. The committee could require any state agency, political subdivision or individual to provide information relevant to the investigation within 30 days of the initial request.