On the eve of a second round of debate on repeal of the death penalty, Gov. Pete Ricketts said late Thursday the state has bought all three drugs necessary to carry out an execution.
Ricketts and Department of Correctional Services Director Scott Frakes announced the state now has one of the three drugs in its possession, potassium chloride, which stops the heart, and will receive the other two -- sodium thiopental and pancuronium bromide -- in the near future.
The sodium thiopental, used to knock out the inmate, and pancuronium bromide, to cause paralysis, were ordered from HarrisPharma, Ricketts said in a news release.
“The functionality of the death penalty in Nebraska has been a management issue that I have promised to resolve,” Ricketts said.
In the past several years, Nebraska and several other states that include sodium thiopental in their execution protocols were forced to buy the drug overseas when the last U.S. manufacturer quit making it in 2010 because of death penalty opposition from customers. The drug was then banned for export by the European Union. It was made in India and China, but defense lawyers questioned its quality.
In 2011, Attorney Jerry Soucie of the Nebraska Commission on Public Advocacy, who represented death-row inmate Michael Ryan, argued Nebraska should not be allowed to use its supply of the drug because broker Chris Harris was not authorized to sell the samples, meant for use in testing. That, he contended, meant Harris misappropriated the thiopental, and Nebraska was in possession of stolen property.
Nebraska Solicitor General James Smith said he was involved in the last appeal by Ryan, that involved documenting how the state's sodium thiopental was obtained and cleared by the Federal Drug Administration, but he did not know the details of how this purchase was made.
He said he had been told it was obtained legally.
Eric Berger, constitutional law professor at the University of Nebraska College of Law, said he had serious questions about both the timing of Ricketts' announcement, to sway opinions for a pending vote, and whether the governor has actually solved the problem of obtaining the drugs as he claimed.
"Nothing the governor said makes clear that the state will put together a constitutional executive procedure," he said. "And it's still very possible that extensive litigation would ensue that would cost the state a lot of money."
Attorney General Doug Peterson said the state has a constitutional protocol that has been developed for some time. The delay has been access to the drug.
Berger said there are questions about the safety and constitutionality of the state's lethal injection procedures and its ability to find and administer drugs to run the procedure.
Did Harris Pharma have FDA approval to import the drug, or did it come from a compounding pharmacy, which is licensed to mix drugs, not manufacture them? And if so, Berger asked, are they safe, pure, and do they have the right potency?
Merely identifying the company the drug was obtained from does not say much about the safety of the drug, Berger said.
"There's a lot more we need to know about this drug provider and the specific batches of drugs to know whether they're safe," he said.
The drugs will be sent for independent laboratory testing to confirm the contents are as labeled, the governor's office said.
On Friday, senators will continue debate on whether to replace the death penalty in Nebraska with a life sentence.
The bill (LB268) received 30 yes votes to advance it to a second of three rounds of consideration. If it passes on the final round, Ricketts has vowed to veto it. A veto override would require 30 votes.
Several amendments have been filed on the bill for second-round consideration. Lincoln Sen. Colby Coash proposed taking out a section of the bill that would make the change from death to a life sentence retroactive.
Sen. Bill Kintner of Papillion has refiled an amendment that would change the death penalty method to firing squad.
Ricketts said three of Nebraska's 11 death-row inmates have exhausted all of their appeals. There hasn't been an execution since 1997.
Nebraska went to lethal injection after the state Supreme Court ruled in 2008 that the electric chair amounted to unconstitutionally cruel and unusual punishment.