ACLU of Nebraska is charging that the Nebraska Department of Corrections may have misrepresented how it intended to use lethal injection drugs it obtained.
In a letter to be sent Monday to the federal Drug Enforcement Agency, the organization said it appeared the department and Nebraska State Penitentiary illegally used its DEA registrations to obtain drugs for executing inmates, violating federal controlled substances laws.
The ACLU called for the Drug Enforcement Administration to investigate the matter and if the allegations are true, to suspend and revoke the registration and to not allow the controlled substances now in the prison’s possession to be used for executions.
The department and the hospital and clinic at the Lincoln prison have been licensed to conduct medical services to help prisoners, said Amy Miller, ACLU of Nebraska legal director.
The DEA registration authorizes the prison's skilled nurses to dispense controlled substances to patients of that hospital/clinic, limited to health care treatment, the ACLU letter says. It does not authorize the hospital, clinic, or anyone else to administer medications to people who are not patients there, or for lethal injections, the ACLU contends.
It's not just an issue that they don't have the proper paperwork, Miller said.
"It looks to us as if they have materially misrepresented information to the federal authorities about their plans for what they were going to use those DEA registrations for," Miller said.
The state of Nebraska has to follow the law like everyone else, Miller said.
The Journal Star received an early copy of the letter and the Department of Corrections has not yet had the opportunity to respond.
ACLU of Nebraska Executive Director Danielle Conrad said the alleged misuse of the registration is another in a series of flagrant efforts to skirt federal regulations and state laws and regulations.
"I think if you look at what we do know from past practice and from the record, the state of Nebraska's experience in playing fast and loose with these laws, and being called on the carpet for it, (has) played out in Nebraska's troubled lethal injection history," she said.
"Unfortunately the state of Nebraska and Gov. (Pete) Ricketts refuse to learn their lesson," she said.
The letter to the DEA was addressed to Demetra Ashley, the acting assistant administrator of diversion control; Wendy Goggin, the DEA leading attorney, and James Shroba, the special agent in charge of the St. Louis division.
The lethal injection drugs — diazepam, fentanyl, cisatracurium besylate and potassium chloride — are controlled substances and their use, storage and dispensing are governed by federal laws, Conrad said.
"It's critical that everyone complies with those laws because there's such serious harms to the public interest and public safety if they don't," Conrad said. "That includes the Department of Corrections who has sought these registrations."
The department is, for the most part, using the drugs for the medical needs of inmates in their care, she said.
"But when they're also using that registration as cover to utilize these medicines for purposes of lethal injection it really raises a host of serious concerns," she said.
For execution purposes with specified doses, diazepam would render a condemned prisoner unconscious; fentanyl, an opioid synthetic painkiller, would cause unconsciousness and stop breathing; cisatracurium besylate would paralyze the inmate; and potassium chloride would stop the heart.
The state's four-drug protocol has never been used for executions, and one of the biggest concerns is the plan to use fentanyl, which is subject to some of the strictest regulations and controls surrounding its use.
"That's really an important component of this action to the DEA because it's a really a new fact and a game-changer in many regards when it comes to how that serious opioid is used in this instance," Conrad said.
When the Legislature moved to lethal injection for executions after the electric chair was determined unconstitutional by the Nebraska Supreme Court, there was an attempt to say lethal injection and executions were exempted from state law that governs the practice of medicine, she said.
"These issues continue to haunt the Nebraska Department of Corrections and other states," she said.
There's still a host of other state and federal laws governing the use of drugs that the department can't exempt itself from, she said.
Nebraska has a history of trying to circumvent federal law in importing drugs for lethal injection purposes, the ACLU said.
In 2015, the department tried to import the lethal injection drug sodium thiopental from a distributor in India despite it being a violation of federal law and regulations.
Since then, the department attempted to pass new protocols that would keep sources of lethal injection drugs secret. The proposal was narrowed, but there is a pending shield law legislative bill (LB661) introduced by Sen. John Kuehn of Heartwell that would have the same effect.
The state notified two death row inmates, Jose Sandoval in November and Carey Dean Moore in January, of the drugs that would be used in their pending executions. No execution warrants have been issued, so no date has been set for their penalty to be carried out.
According to the state's execution protocol, the notice of the drugs, quantities and sequence used must be issued to the inmate 60 days in advance of seeking a death warrant from the state Supreme Court. It's been more than 60 days since Sandoval's notice, and March 20 will be 60 days in the case of Moore.
Pfizer has requested the state return any lethal injection drugs it has manufactured.
The Department of Corrections and Director Scott Frakes have denied requests by the Lincoln Journal Star, ACLU of Nebraska and Omaha World-Herald for public records related to the purchase of the drugs.
Subsequent to the denial, the ACLU filed a lawsuit seeking to force the department to release public records relating to lethal injection drugs obtained by the state. Working with Media of Nebraska, the Journal Star has filed a separate petition seeking the records, as has the World-Herald.
A trial date has been set for May on those lawsuits.