Politics & Policy

Nebraska’s Death Penalty Fight Isn’t Over

Nebraska’s state legislature overrode Republican governor Pete Ricketts’s veto this past month, to abolish the state’s death penalty, but Ricketts isn’t giving up the fight.

The state currently has ten inmates on death row, and Ricketts wants to see that the repeal doesn’t apply to them. No state has successfully carried out death sentences after repeal — four of the six states that abolished the death penalty in the last decade have commuted the sentences, and two of them remain in appeals — but Ricketts’s administration looks committed.

Leading the charge is state attorney general Doug Peterson, who in a statement challenged the constitutionality of the legislature’s intent to switch the death-row inmates to life imprisonment. “Nebraska’s Constitution,” he said, “reserves to the Board of Pardons the exclusive power to change final sentences imposed by courts.”

But while the Board of Pardons may sound like an independent entity in charge of reviewing the situation, it’s made up of a total of three members who have made their views very clear: Governor Ricketts; Secretary of State John Gale, who is also a vocal proponent of the death penalty; and the attorney general himself. In other words, there’s little to no chance they will change the sentences of the ten on death row.

The legislature’s bill obviated the statutory mechanism to execute prisoners, making it clear that the repeal is intended to apply retroactively.

Any attempt Peterson et al. might make to apply death sentences, however, doesn’t seem like it should bear much legal weight. The legislature’s bill obviated the statutory mechanism to execute prisoners, making it clear that the repeal is intended to apply retroactively. No court in Nebraska can issue a death warrant, and even the Nebraska supreme court cannot weigh in on the interpretation of the bill, as it cannot issue an advisory opinion on statute.

Peterson still plans to bring the issue to the courts, but according to Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, he has a weak case. “Generally speaking, state legislatures can legally lower the punishments for a crime,” even retroactively, Scheidegger says. He points to California’s Proposition 47, which retroactively reduced sentences last year, as an example.  

Most likely, Nebraska will end up with ten inmates on life without parole as a practical result, if not an official one.

And the process will still impose much of the death penalty’s steep price. Usually, there are bigger questions at play over the death penalty, but what if this is just a symbolic fight? Keeping prisoners on death row can mean more defense attorney fees, overhead from the clemency and appeals processes invoked by those condemned to die, and many other costs. Every inmate on death row in the two states that refused to commute their sentences — Connecticut and New Mexico — is currently undergoing expensive appeals processes over the constitutionality of upholding their executions.

In an interview with a journalist from local NBC affiliate WOWT6, Nebraska death-row inmate Marco Torres Jr. said he plans to use Ricketts’s refusal to commute his sentence as an opportunity to file more appeals; others will presumably do so too.

And that’s not the only problem with trying to keep the ten men on death row: The state is also having trouble acquiring drugs for lethal injection, putting not just state money but legal and ethical standards on the line in order to carry out more death sentences.

#related#In mid April, the director of Nebraska’s Department of Correctional Services, Scott Frakes, spent over $50,000 on 1,000 units of sodium thiopental and pancuronium bromide, two of the drugs in the lethal-injection cocktail specified by the now-defunct protocol – enough volume to kill the ten death-row inmates many times over.

The International Drug Price Indicator Guide reports the median market price of a unit of sodium thiopental at $2.20 and of pancuronium bromide at $0.46. The Nebraska Department of Corrective Services paid between 10 and 60 times these prices: $26.70 for sodium thiopental and $27.70 for pancuronium bromide.

These exorbitant prices may stem from the dodgy source of the drugs, a pop-up pharmaceutical company off the coast of India called Harris Pharma run by a middleman named Chris Harris. Harris also brokered the only other two purchases Nebraska has made since lethal injection became the state’s official execution method in 2009.

Both of those deals, which happened in 2010 and 2011, became controversial when the suppliers alleged they were misinformed on how the drugs would be put to use. The second of the two companies, a pharmaceutical provider called Naari, told the Nebraska supreme court that Harris deceitfully claimed he was attempting to get the drugs registered for surgical purposes in Zambia. Both providers demanded the drugs be returned; on both counts, Nebraska refused. The drugs eventually went to waste, as the first batch was confiscated by the DEA and the second batch — which a federal court and the FDA had ordered Nebraska to surrender anyway — expired before it could be put to use.

Despite the legal and ethical controversy over the previous two sales, when Harris offered his services via e-mail to Frakes on April 14 of this year, Frakes dropped about three and a half times the money spent on both previous deals combined.

“Just wanted to let you know [I] have a few states who have already ordered sodium thiopental,” Harris wrote. ”Would Nebraska be interested as I will have a few thousand vials extra?” Two days later — on the day that the death-penalty repeal bill passed the first round of voting, 30–13 — Frakes asked for an invoice. His office says that Harris gave a minimum purchasing order of 1,000 vials, which the state agreed to even though only three are used per execution and the drug has a shelf life of two years.

Was two days enough time for due diligence on a lethal-injection provider who was 0-for-2 on similar deals?

Was two days enough time for due diligence on a man who is 0-for-2 on India-based sodium-thiopental deals? Harris has no formal pharmaceutical background, and according to the chief counsel of the Nebraska Commission on Public Advocacy, Jim Mowbray, may not even have the drugs. “Harris Pharma has not exported any drugs from the port or airport in Kolkata, India,” he tells National Review, even though the final invoice was signed early May and the Department of Corrections made the entire payment in advance. “The state got robbed,” Mowbray says. Harris did not respond to a request to comment.

Even if the drugs do make it to American shores, the FDA has announced that it will “refuse its admission into the United States, citing a 2013 D.C. Circuit Court case that made it unlawful to import sodium thiopental because no foreign source has been approved for safety and regulatory standards. “It’s very clear that federal law mandates that the FDA prohibit importation of this drug,” Nebraska College of Law professor Eric Berger says. “The department of corrections, the governor’s office, and the attorney general’s office should have all known about that.”

Questions also arise over how much Frakes even knew about the company he was dealing with. After Frakes sent in the purchasing order, according to e-mails released by the state government after a request from the ACLU, Frakes wrote that he couldn’t find “the Utah address listed in our state purchasing system.” Harris Pharma is based out of Salt Lake City — a commercial zone in Kolkata, India, not, as Frakes seemed to have thought, the capital of Utah. Although he had sent documents to India at that point, Frakes may still have thought he was interacting with a company subject to some U.S. oversight. Frakes’s office declined to clarify.

Defenders of the death penalty argue that this shadowy process is the result of corporations and activists’ pressuring lethal-injection providers out of the market. “Some pharmaceutical products are not available for departments of corrections to use in executions because pharmaceutical companies do not want to be associated with executions and therefore have elected to make their products unavailable for that use,” says Megan McCracken of UC Berkeley Law School. “A good example is Nembutal, a brand name for the pentobarbital product,” an alternative to sodium thiopental, she says.

But, she notes, production of sodium thiopental in America doesn’t seem to have stopped because of anti-death-penalty activists. Hospira, the only American manufacturer of the drug, closed its plant in 2010 because a production line (not thiopental specifically) failed an inspection. “Clinical use of thiopental had been declining for years, and Hospira had been the last pharmaceutical company making and selling thiopental in the U.S,” she says.

Foreign firms have been largely unable to fill this vacuum not only because of the FDA restriction, but also because many nations and the European Union have banned exports of sodium thiopental to the United States because of their anti-death penalty stance.

Governor Ricketts announced the imminent freshening of the state’s sodium thiopental supply in Nebraska around a week before the state legislature voted for repeal with a veto-proof majority. His office declined to comment on his refusal to reconsider the process in light of the legislature’s vote.

No state has executed an inmate after repealing the death penalty. If Ricketts wants to try to be the first, he’ll be facing costly legal and practical hurdles — all for the sake of carrying out an act his state legislature just overwhelmingly rejected.

— Shubhankar Chhokra is an intern at National Review.

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