Nebraska’s death penalty repeal is legally on hold for a year.
But the death penalty itself is technically on hold because the state does not have the multi-syllable drugs -- sodium thiopental, pancuronium bromide -- needed to comply with state protocol in putting inmates to death. Sodium thiopental is a rapid-onset short-acting barbiturate used to put the inmate to sleep. Pancuronium bromide is a muscle relaxant that can stop breathing.
The drugs were ordered in April, but reportedly have not been delivered. Still, Gov. Pete Ricketts continues to give death penalty supporters an any-day-now assurance that the state not only has the resolve but also will have the means to execute the 10 men on death row.
It has become his mantra.
* “When it comes to carrying out those sentences we're going to continue to look for ways to be able to do that and working with federal officials on that.”
* “We're looking to secure these drugs. We're working with the DEA.”
* "The state continues to work with the DEA to import the drugs."
Nebraska repealed the death penalty in May, but a successful referendum has suspended the repeal and forced a vote of the people in November 2016 to decide the fate of capital punishment here.
In the meantime, a University of Nebraska law professor is calling Ricketts’ statements on securing the drugs a “red herring,” meant to be misleading or distracting.
“And even if the drugs somehow did enter the country illegally, their arrival in Nebraska would spark extensive and expensive litigation,” said Eric Berger, who has a law degree from Columbia University, lists the death penalty as one of his areas of expertise and has written extensively about lethal injection.
So what does the often referred to DEA, the federal Drug Enforcement Administration, have to say about working with the state on importing the two drugs the Department of Correctional Services has paid $54,400 to a broker from India to purchase?
In July, Nebraska, Texas and Arizona were told that any foreign manufactured sodium thiopental was disallowed across the board under a 2012 federal court injunction through the federal Food and Drug Administration, DEA spokesman Lawrence “Rusty” Payne said Friday.
According to the FDA, sodium thiopental does not have an approved application in this country. If a shipment came through, it would automatically be illegal, Payne said.
“So even if you have every permit, import license, registration, everything else, the drug has to be approved in the U.S., and right now sodium thiopental isn’t,” he said.
The Corrections Department in late August had its shipment of the drug -- three packages -- turned back from a New Delhi FedEx facility to the sender because of improper paperwork, according to FedEx documents.
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In distinguishing the duties of the two federal agencies, Payne said it’s the FDA’s job to worry about the foreign source, while the DEA manages whether the recipient in the United States is registered to handle and import a controlled substance.
Payne said the DEA has heard from the states over the past several months, but there’s not a lot the agency can do.
“Sodium thiopental is not importable. This is not a DEA issue. It’s more of an FDA issue right now,” he said.
And so, states like Nebraska, Ohio, Texas, Arizona and Oklahoma which rely on that drug for executions are in a bind.
In June, the FDA’s director of import operation sent a letter to the Ohio Department of Rehabilitation and Correction reminding him that if he intends to obtain any form of sodium thiopental from an overseas source, it would be illegal.
On Oct. 9, Stephen Gray, chief counsel of the Ohio Department of Rehabilitation and Correction, challenged the FDA in a letter, contending Ohio would be able to legally import sodium thiopental if it comes from an FDA-registered source, is on the source’s list of drugs in commercial distribution in the United States, is not misbranded or adulterated, and is in a shipment examined by the FDA.
The state has 24 executions scheduled beginning in January and extending through 2019. But the state must ensure there are sufficient execution drugs 30 days prior to the execution date, according to regulations.
Ohio has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S., the Columbus Dispatch reported.
The issue is heating up in several states.
Federal authorities confiscated imported sodium thiopental in Arizona and Texas a week ago. Officials in Arizona said they believed the drugs impounded there are legal, The Associated Press reported. And Texas officials said they went through proper federal channels, obtaining an import license from the Drug Enforcement Administration and notifying FDA and Customs.
"The department is contesting FDA's legal authority to continue to withhold the state's execution chemicals," Arizona Corrections Department spokesman Andrew Wilder said.
Meanwhile, 22 states, the federal government or courts have either put formal holds on executions, indefinitely stayed scheduled executions, officially declared moratoriums, granted reprieves while the issue is studied, or abolished the death penalty -- many of them because of problems with the lethal injection drugs.
So is it realistic that Nebraska can obtain the drugs needed?
Ricketts said last week that historically Nebraska and other states have been able to do that.
“We still need to be able to work through the process. And we're going to continue to look at all our options ... to be able to carry out these sentences,” he said.