Nebraska

States to try new ways of executing prisoners. Their latest idea? Opioids.


December 11, 2017

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions.

The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method – something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask.

Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. As of late November, 23 inmates had been put to death in 2017 – fewer than in all but one year since 1991. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states shroud their procedures in secrecy to try to minimize legal challenges.

But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer.

Nevada officials say they had no problem buying fentanyl.

“We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

The state, which last put someone to death in 2006, had planned its first fentanyl-assisted execution for November. The inmate involved, 47-year-old Scott Dozier, was convicted of killing a man in a Las Vegas hotel, cutting him into pieces and stealing his money.

According to documents obtained by The Washington Post, Nevada’s protocol calls for Dozier first to receive diazepam – a sedative better known as Valium – and then fentanyl to cause him to lose consciousness. Large doses of both would cause a person to stop breathing, according to three anesthesiologists interviewed for this report.

Yet Nevada also plans to inject Dozier with a third drug, cisatracurium, to paralyze his muscles – a step medical experts say makes the procedure riskier.

“If the first two drugs don’t work as planned or if they are administered incorrectly, which has already happened in so many cases . . . you would be awake and conscious, desperate to breathe and terrified but unable to move at all,” said Mark Heath, a professor of anesthesiology at Columbia University. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move.”

John DiMuro, who helped create the fentanyl execution protocol when he was the state’s chief medical officer, said he based it on procedures common in open-heart surgery. He included cisatracurium because of worries that the Valium and fentanyl might not fully stop an inmate’s breathing, he said. “The paralytic hastens and ensures death. It would be less humane without it.”

A judge postponed Dozier’s execution last month over concerns about the paralytic, and the case is awaiting review by Nevada’s Supreme Court. In the meantime, Nebraska is looking toward a fentanyl-assisted execution as soon as January. Jose Sandoval, the leader of a bank robbery in which five people were killed, would be the first person put to death in that state since 1997.

Sandoval would be injected with the same three drugs proposed in Nevada, plus potassium chloride to stop his heart.

Even at much lower concentrations, intravenous potassium chloride often causes a burning sensation, according to Heath. “So if you weren’t properly sedated, a highly concentrated dose would feel like someone was taking a blowtorch to your arm and burning you alive,” he said.

Fentanyl is just the latest in a long line of approaches that have been considered for capital punishment in the United States. With each, things have often gone wrong.

When hangings fell out of favor in the 19th century – because of botched cases and the drunken, carnival-like crowds they attracted – states turned to electrocution. The first one in 1890 was a grisly disaster: Spectators noticed the inmate was still breathing after the electricity was turned off, and prison officials had to zap the man all over again.

Gas chambers were similarly sold as a modern scientific solution. But one of the country’s last cyanide gas executions, in 1992, went so badly that it left witnesses crying and the warden threatening to resign rather than attempt another one.

Lethal injection, developed in Oklahoma in 1977, was supposed to solve these problems. It triggered concerns from the start, especially because of the paralytic drug used. Even so, the three-drug injection soon became the country’s dominant method of execution.

In recent years, as access to those drugs has dried up, states have tried others. Before the interest in fentanyl, many states tested a sedative called midazolam – leading to what Supreme Court Justice Sonia Sotomayor called “horrifying deaths.”

Dennis McGuire, who raped and killed a pregnant newlywed in Ohio, became the first inmate on whom that state’s new protocol was tried. Soon after the 2014 execution began, his body writhed on the table as he gasped for air and made gurgling, snorting noises that sounded as though he was drowning, according to witnesses.

The same year, Oklahoma used midazolam on an inmate convicted of kidnapping and killing a teenager; authorities aborted the execution after Clayton Lockett kicked, writhed and grimaced for 20 minutes, but he died not long after. Three months later, Arizona used midazolam on Joseph Wood III, who was convicted of killing his ex-girlfriend and her father. Officials injected him more than a dozen times as he struggled for almost two hours.

Like officials in other states, Arizona officials argued that the inmate did not suffer and that the procedure was not botched. Later, they said they would never again use midazolam in an execution.

Joel Zivot, a professor of anesthesiology and surgery at Emory University, called the states’ approach ludicrous. “There’s no medical or scientific basis for any of it,” he said. “It’s just a series of attempts: obtain certain drugs, try them out on prisoners, and see if and how they die.”

The bad publicity and continuing problems with drug supply have sent some of the 31 states where capital punishment remains legal in search of options beyond lethal injection. Turning to nitrogen gas would solve at least one issue.

Nitrogen is literally in the air we breathe – you can’t cut off anyone’s supply to that,” said Scheidegger, who strongly supports the idea.

In addition to Mississippi, Oklahoma has authorized nitrogen gas as a backup to lethal injection. Corrections officials and legislators in Louisiana and Alabama have said they hope to do the same.

And yet, critics note, there is almost no scientific research to suggest that nitrogen would be more humane.

Zivot is among those skeptical that nitrogen would work as hoped.

“There’s a difference between accidental hypoxia, like with pilots passing out, and someone knowing you’re trying to kill him and fighting against it,” he said. “Have you ever seen someone struggle to breathe? They gasp until the end. It’s terrifying.”

Dozier, the inmate Nevada hopes to execute soon with fentanyl has said he would prefer death by firing squad over any other method. In more than a dozen interviews, experts on both sides of the issue expressed similar views.

Of all the lethal technology humans have invented, the gun has endured as one of the most efficient ways to kill, said Denno, who has studied the death penalty for a quarter-century.

“The reason we keep looking for something else,” she said, “is because it’s not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”

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Death row inmate Lotter’s attorneys ask U.S. Supreme Court to hear case


December 1,  2017

A Nebraska death row inmate has asked the U.S. Supreme Court to take his case and review decisions by a federal district court and appellate court to deny his latest challenge to his sentence.

John Lotter, who was convicted in the killing that inspired the 1999 movie “Boys Don’t Cry,” specifically is seeking review of an 8th Circuit Court of Appeals order July 31 denying him permission to go forward with an appeal in U.S. District Court in Nebraska.

Rebecca Woodman and Jessica Sutton, of the Death Penalty Litigation Clinic in Kansas City, Missouri, had sought to challenge Nebraska’s sentencing method, which relies on judges and not juries to determine if someone gets the ultimate punishment.

They started the challenge in U.S. District Court in Lincoln.

But in February, Senior U.S. District Judge Richard Kopf refused and denied Lotter’s habeas corpus petition, in part because the attorneys hadn’t gotten permission from the 8th Circuit Court to file it.

He likened the filing to a Hail Mary pass.

Lotter, who is raising the same challenge in state court based on a U.S. Supreme Court decision in a Florida case last year, appealed.

In a one-page judgment July 31, a three-judge 8th Circuit panel said after carefully reviewing the district court file it was denying Lotter’s application for a certificate of appealability.

The court’s permission is required for him to go forward in federal court because he has had at least one prior habeas corpus petition.

Lotter also is appealing a Richardson County District judge’s decision to deny him an evidentiary hearing.

Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt farmhouse.

Death penalty hearing for convicted killer delayed until 2018


OMAHA, Neb.  — The death penalty hearing for convicted serial killer Anthony Garcia has been delayed until early 2018. Garcia was convicted in the 2008 deaths of Thomas Hunter, the 11-year-old son of Creighton University Medical Center pathologist Dr. William Hunter and the family’s housekeeper, Shirlee Sherman, as well as the 2013 deaths of Creighton pathologist Dr. Roger Brumback and his wife Mary.

Garcia was set to face a three judge panel at the end of this month, but that hearing will be delayed until March of 2018. Garcia’s new attorneys asked for more time to prepare their issues for the three judge panel.

Garcia is now being represented by a kind of statewide public defender’s office from the Nebraska Commission on Public Advocacy after his Chicago lawyers wiped their hands of the case.

“We’ve come in late and we’re trying to catch up with all the mitigation stuff that needs to be done,” said Garcia’s attorney Todd Lancaster.

Garcia’s new attorneys filed six motions. They include motions to declare sections of Nebraska’s death penalty unconstitutional. The state objected to many of the exhibits coming from the defense.

“I didn’t think they were relevant. They were secondary nature some were newspaper articles some were dealing the politics of what they claim is the politics of the death penalty,” said Chief Deputy Douglas County Attorney Brenda Beadle. “We didn’t feel it appropriate.”

The judge decided to delay the hearing until next year and that didn’t sit well with family members of one of Garcia’s victims, Shirlee Sherman.

“This is ridiculous. It took 1,200 days from the time they arrested him to convict him and over a year trying to sentence him,” said Brad Waite, Shirlee’s brother. “It’s on and on and there again they want to delay again. It disrupts our lives – everybody in the whole family – because we don’t know what the next step is.”

The next step will be more hearings as the trial of Anthony Garcia continues. The judge set aside two days to hear Garcia’s attorneys for March 12th and 13th of next year.

Nebraska death penalty repeal on hold


Supporters of retaining the death penalty in Nebraska turned in thousands more signatures than necessary on Wednesday to suspend the repeal and place the issue before voters.
Nebraskans for the Death Penalty turned in petitions containing 166,692 signatures. Leaders of the group called that a surprisingly large number and said it signaled that voters in the 2016 general election will retain the ultimate penalty for the most heinous murders, reversing the repeal enacted by the State Legislature this spring.
A lot of senators will find out that their constituents have a different view, I really believe that,” said State Sen. Mike Groene of North Platte, a death penalty supporter who circulated petitions.
Opponents of the death penalty, meanwhile, said that they expect Nebraska voters to come to the same conclusion as 30 of the state’s 49 state lawmakers. Voters will learn that the risks of executing innocent people, the “tremendous waste” of taxpayer dollars and the hurdles in obtaining the necessary drugs have made the death penalty immoral, unjust and unworkable, said the Rev. Stephen Griffith of Nebraskans for Alternatives to the Death Penalty.
“Just like the legislators they elected, we believe the more Nebraskans learn about the failures of capital punishment, the more they will be inclined to get rid of it,” said Griffith, the group’s new executive director.
The pro-death penalty group formed in June and launched its petition drive just after state lawmakers overrode Gov. Pete Ricketts’ veto and repealed the death penalty.
The vote drew national attention as Nebraska became the first conservative state since North Dakota in 1973 to do away with the death penalty. Currently, 31 states have capital punishment.
But the victory by death penalty opponents in Nebraska now appears to be in jeopardy.
The pro-capital punishment group turned in nearly 3 times as many signatures as is necessary to place the issue on the ballot: 5 % of the state’s registered voters, about 57,000 signatures. The drive must also meet that 5 % threshold in 38 of the state’s 93 counties.
But Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box.
To do that, the drive needed to submit valid signatures of 10 percent of the state’s voters, or about 114,000 signatures.
Typically, 15 % to 25 % of signatures are invalidated, either because a signer wasn’t registered to vote or for other technical reasons. Even if 25 % of the signatures were disqualified, the drive would still have 125,000 valid signatures, more than enough to suspend the repeal.
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was “a lot of significance” to collecting so many signatures.
“It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty,” Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, both said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty – which was scheduled to go into effect on Sunday – is on hold until the count is completed.
“There will be some uncertainty in the law,” Stenberg said. But, he added, “It’s not unusual to have uncertainty in the law.”
Nebraska lacks the necessary drugs to carry out an execution via its only legal means, lethal injection. But Stenberg, who as attorney general presided over the state’s last 3 executions in the 1990s, said that if the state obtains the necessary drugs, there’s nothing preventing current Attorney General Doug Peterson from asking for execution dates for the 10 men on death row.
Peterson, on Wednesday, said he was reviewing the cases.
The State Supreme Court would have to approve any requests for execution dates. It’s unclear if the court would do that while a referendum on the issue is pending and after the Legislature voted to repeal the death penalty.
One of the senators who voted for the repeal, Bob Krist of Omaha, said death penalty supporters will need a lot more support to overturn the repeal in the 2016 election.
He said the referendum should not be about vengeance but “justice and fiscal conservatism.” Krist said the state has spent millions and only executed 3 people in the last 6 decades.
He also questioned if the drive collected most of its signatures from Omaha and Lincoln, or from areas like Norfolk and Falls City, where there have been horrible murders and support for capital punishment is higher.
“So here we go. Game on,” Krist said.
Officials with Nebraskans for the Death Penalty said they collected enough signatures to qualify the issue for the ballot in the 1st month, then used a last-minute push to qualify the measure in the necessary 38 counties.
Chris Peterson, the drive’s spokesman, said the group expects to spend about $800,000 to $900,000 on its petition-gathering effort, which included hiring hundreds of paid circulators and an Arizona consulting company.
That spending, he said, is comparable to what a group spent last year to get an initiative petition on the ballot to increase the state’s minimum wage. Nebraskans for Better Wages turned in 134,899 signatures after a 60-day drive.
Ricketts and his family were among the prime financiers for the pro-death penalty drive. The Republican governor contributed $200,000 in the first 2 months, and his father, TD Ameritrade founder Joe Ricketts, gave $100,000.
Officials with the pro-death penalty group said that petition signers overwhelmingly said they deserved a chance to vote on the issue.
“It’s too important of an issue to be left to the give-and-take of politics,” said Groene.
Vivian Tuttle of Ewing, whose daughter Evonne was 1 of 5 people slain during an attempted robbery at a Norfolk bank in 2002, said she put 8,000 miles on her car seeking support for the referendum drive.
“Wherever I went, people said ‘I want to help do this,'” Tuttle said.
The last time a referendum petition appeared on the ballot was in 2006, when voters were asked whether to overturn a law mandating the consolidation of Class I school districts.
Source: lexch.com, August 29, 2015

Nebraska group says it can stop death penalty repeal


An organization campaigning to reinstate Nebraska’s death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016.
Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state’s counties. Nebraska’s unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the 1st traditionally conservative state to do so in 42 years.
The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 % of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.
“Nebraskans sent a strong message about crime and punishment in our state by signing this petition in extraordinary numbers,” said state treasurer and former attorney general Don Stenberg, a co-chair of the petition drive.
The announcement came just before the repeal law was set to go into effect on Sunday, but the signatures still need to be verified. The petitions now go to the Nebraska secretary of state’s office, which will forward them to counties to verify the signatures in a process that will take about 40 days.
Republican Attorney General Doug Peterson, who supports the death penalty, said in a statement that the signatures are “presumptively valid” until determined otherwise. Stenberg said no one will know the exact number of valid signatures for at least a month, but the state constitution makes clear that petitions go into effect on the day they’re submitted.
Even if the law is suspended, Nebraska currently has no way to execute any of the 10 men on death row because its lacks 2 of the 3 required lethal injection drugs and has struggled to obtain them legally. The state paid $54,400 in May to order the drugs from a broker in India, but federal authorities have said they can’t be legally imported.
Nebraska lawmakers voted by the narrowest possible margin, 30-19, to override Ricketts’ veto. Ricketts assailed the Legislature as out of touch with the wishes of most residents. The repeal vote was helped by an unusual coalition of conservative state senators and more traditional death penalty opponents who had fought unsuccessfully for decades to eliminate the punishment. Some conservatives said they opposed it for religious and moral reasons, while others cast it as an inefficient government program that wastes tax money.
“What the Nebraska Legislature did is going to have an effect,” said Robert Dunham, executive director of the Washington-based Death Penalty Information Center, whose group takes no stance on the death penalty but often criticizes how it’s administered. “The message that conservative legislators can reach across the aisle with moderate and liberal legislators – that message is still there and still resonates.”
Nebraska hasn’t executed an inmate since 1997, and has never done so using the state’s current 3-drug lethal injection protocol.
The state was the 19th to abolish capital punishment, as has the District of Columbia, while the death penalty is legal in 31 states and for some federal crimes. The number of executions in the United States has gradually declined in recent years and only a handful of states led by Texas regularly put inmates to death.
The announcement of the number of signatures caps an 82-day petition drive backed by Ricketts and his father, TD Ameritrade founder Joe Ricketts. The governor had given $200,000 to Nebraskans for the Death Penalty as of the last filing deadline on July 31, while his father had donated $100,000. The group raised a total of more than $652,000 from 40 individual donors and seven groups classified as businesses, political action committees and other entities.
The largest donation in July came from the conservative, Washington-based Judicial Crisis Network, which gave $200,000. Nebraskans for the Death Penalty relied on a combination of paid and volunteer petition circulators, and was aided by an Arizona-based strategist who specializes in ballot campaigns.
Source: Associated Press, August 28, 2015

 

Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska


In May, the state abolished the death penalty. Now, the fundraising race is on between groups trying to put the death penalty up for a statewide vote – or keep it off the ballot.
After the Nebraska legislature successfully abolished the death penalty in the state, an expensive battle has begun to bring it back. But so far, the side against the death penalty is winning the fundraising battle.
The money is all about the potential for a statewide vote on the death penalty.
In May, the state’s conservative legislature narrowly overruled Republican Gov. Pete Rickett’s veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back. Nebraskans for the Death Penalty will need to collect 57,000 signatures by August to get the vote on the ballot. If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in.
The group estimates that it would need to spend about $900,000 to do so. So far, though, the group has been outraised by an organization opposing the death penalty referendum, according to campaign finance reports filed with the Nebraska Accountability and Disclosure Commission.
Nebraskans for the Death Penalty raised $259,744 – and more than 75% of that came from the governor’s family. Ricketts and his father, the founder of TD Ameritrade, have given $200,000 to the group.
Another $10,000 was given to the pro-death penalty organization by an Omaha police union.
Nebraskans for the Death Penalty has spent almost all of the money it has currently raised in starting the signature collecting process. The group has $26,000 in cash remaining, but has $25,000 in unpaid legal and consulting bills.
On the other side, Nebraskans for Public Safety (an anti-death penalty group) has not yet filed its full campaign finance report as of Thursday evening. But the group has disclosed receiving a $400,000 contribution from a progressive organization called Proteus Action League. The group is a 501c(4), meaning it does not disclose its donors.
This isn’t the 1st time Proteus Action League has spent money against the death penalty – the group spent more than $3.4 million on anti-death penalty efforts in 2012, according to an IRS filing.
The anti-death penalty group Nebraskans for Public Safety, which is affiliated with Nebraskans for Alternatives to the Death Penalty and the American Civil Liberties Union of Nebraska, has spent some of the money on television ads urging voters to not sign the petition.
Regardless of the outcome, Ricketts believes he will still be able to carry out the executions of the 10 men on death row. In pursuit of that, his Department of Correctional Services has spent more than $50,000 on execution drugs from a seller based in India.
Since the drugs are not approved by the Food and Drug Administration, the federal government says it intends to detain the shipment when it arrives.
Source: buzzfeed.com, July 1, 2015

 

NEBRASKA – Unsafe for execution ? The state of Nebraska hopes to execute a man with a drug that has been recalled by its manufacturer


June 7, 2012  Source : http://www.salon.com

On the farm they called him King. He was the Archangel Michael incarnate, they believed, and he spoke directly to Yahweh. In his name, they stockpiled more than $120,000 worth of stolen ammunition and prepared for the Battle of Armageddon, which their King decreed would be fought in the windswept wheat fields of Rulo, Neb. If anyone left, the King said, he would “hunt down and kill” them, and they would “burn in hell.”

The King was an unemployed truck driver named Michael Ryan — and he wasn’t bluffing. He’s been sitting on death row since 1986 for the murder and ritualistic torture – razor blades and chains, sodomization and forced bestiality – of fellow cult member James Thimm. Save for those ideologically opposed to the death penalty, few would argue he deserves anything else.

And yet Ryan survives in a prison cell today, despite the state of Nebraska’s best efforts to kill him. His execution has been sidelined by the continuing fallout from a shortage in the execution drug sodium thiopental, which began in August 2009 — a shortage that has quietly remodeled the death penalty in the United States. As states run out of sodium thiopental, they’re turning to new and questionable supplies of execution drugs. Prisoners, meanwhile, are fighting these changes at every turn: Their sentences were clear, they argue, and this wasn’t part of them.

“It has nothing to do with whether Michael Ryan or any other death row inmate deserves to die,” says Jerry Soucie, Ryan’s attorney and employee of the Nebraska Commission for Public Advocacy. “The issue is whether those people who decide they want to exercise the power to execute somebody are in compliance with the law. And if they’re not, there’s a problem. You don’t enforce the law by engaging in lawless conduct.”

In Nebraska, the effects of the shortage have been particularly acute. Nebraska has twice purchased sodium thiopental made overseas by non-FDA approved companies. (The shortage began when Hospira, the sole FDA-approved manufacturer of sodium thiopental, ceased production.) The first time, the DEA barred Nebraska from using its new thiopental for importing the drug without a proper license.

Then last November, the Nebraska Department of Correctional Services announced it had purchased another new supply of sodium thiopental from a Swiss company called NAARI AG. Immediately following the announcement, the state attorney general’s office asked the Nebraska Supreme Court to set a new execution date for Michael Ryan. But 15 days later, NAARI CEO Prithi Kochhar sent a letter to the Nebraska Supreme Court asking for the drug’s return. In his letter, Kochhar explained that the NDCS had not purchased the sodium thiopental directly from NAARI. It had, in fact, been purchased from a Calcutta, India-based middleman named Chris Harris who was not authorized to resell the drug to Nebraska.

“I knew of Chris Harris, certainly his reputation for doing business,” says Jerry Soucie, Ryan’s attorney. “No question about it, he had a shady reputation. … I was just kind of shocked the NDCS would be dealing with him.”

According to Kochhar’s letter, NAARI supplied Harris with the drug in order to have it registered in Zambia, where they hoped to extend their coverage. Instead, Harris sold all 489 grams to the NDCS for $5,411, roughly 142 times its worth.

On May 9, after discovering the breach in its supply chain, NAARI issued a voluntary recall of the drug, noting that it was illegally diverted and could therefore be potentially unsafe. Nebraska officials have chosen not to comply with the recall, and Soucie contends they are in possession of stolen goods.

“The fact that NDCS would not honor our company recall…is a little shocking to us,” says Kochhar. “It seems that NDCS is not concerned about the effect of using an unsafe drug in any operation, not least one which might be used to end someone’s life in a potentially painful way.”

And Nebraska isn’t only refusing to comply with NAARI. Last March, U.S. District Court Judge Richard Leon ruled the Food and Drug Administration was wrong to allow foreign-made sodium thiopental into the country. Furthermore, Leon ordered the FDA to notify all state correctional departments with supplies of the drug to relinquish them to the FDA. Rather than comply with that order, the Nebraska attorney general’s office asked the FDA to appeal Judge Leon’s ruling and is currently still in possession of the drug. Fourteen other states have since called for the same appeal.

“The states that are positioned better are the states looking further down the road for alternatives rather than holding on to something because they don’t want to change,” says Richard Deiter, executive director of the Death Penalty Information Center.

These states have given up on thiopental completely. As recently as May 18, Idaho announced it had switched to a lethal dose of the surgical sedative pentobarbital. Missouri recently became the first state to formally adopt the anesthetic propofol, the same drug that killed Michael Jackson. According to Deiter, Nebraska and other states resisting a change to their lethal injection protocol are only delaying the inevitable. Domestic suppliers of sodium thiopental have run dry and the drugs carry an expiration date.

“States know that as soon as they make a change, the change will be challenged in court,” Deiter says, “but not making a change is also being challenged. I think states are going to have to find a source of drugs within the United States if they’re going to carry out lethal injections in a reliable, predictable manner.”

Yet despite all of this – despite a federal ruling and company recall, despite the fact that Nebraska’s current batch of sodium thiopental was illegally imported, despite the fact that change is the only way forward – State Attorney General Jon Bruning said Ryan’s challenge is merely “a circus sideshow,” according to the Lincoln Journal Star, and Governor Dave Heineman maintains it’s simply the latest tactic employed by death penalty opponents. Both Bruning and Gov. Heineman, who continue to steer the conversation towards Ryan’s execution rather than the efficacy of the drug, declined to be interviewed.

“When the powers that be in Nebraska or wherever decide they’re going to kill someone using either stolen drugs or without the proper licensing, then why do we have a legal system at all?” Soucie says. “Why don’t we take the guy out behind the building and shoot him once in the back of the head with a 9 mm? It would be just as lawless for them to do that as it is for them to violate federal law in carrying out an execution.”