Premium ContentMouse over Home then click on Premium Content for information.LINCOLN — Nebraska's recent purchase of a drug used in executions of death row inmates could inject a new facet into the death penalty debate when the Legislature convenes in two weeks.
Last year, the Judiciary Committee advanced LB 276, which would replace capital punishment with life in prison without parole. The bill will be debated on the floor sometime during the 2012 session.
Given majority support for capital punishment among Nebraska lawmakers, it seems unlikely that the bill will pass. But that won't stop Sen. Brenda Council of Omaha and other death penalty opponents from making their arguments for repeal.
Recent claims by a Swiss drug manufacturer that it was duped out of vials of sodium thiopental, which, in turn, were sold to Nebraska, undoubtedly will be mentioned during debate on LB 276, Council told The World-Herald last week. The anesthetic is part of Nebraska's three-drug protocol for execution by lethal injection.
"I don't think the state should be involved in utilizing a product that the manufacturer has maintained was obtained under false pretenses," Council said.
"If you know the manufacturer had no intention that the drug be shipped to the United States — let alone to be used in lethal injection — that obliges you to step back," she said.
Death penalty opponents sense an opportunity because of the difficulty Nebraska has had in obtaining sodium thiopental. And getting the drug promises to become even more daunting.
It is no longer made in the United States. Supplies seem likely to get even tighter after Tuesday's news reports that the European Commission will strengthen export controls on the sale of thiopental and other lethal injection drugs to nations that have not abolished the death penalty.
If foes of capital punishment can delay a Nebraska execution long enough or win a legal challenge based on how the state bought its latest batch of the anesthetic, it could force a change in the three-drug protocol.
Making such a change ought to require new legislation, contends Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee. The 2009 legislative debate over the lethal injection law was tied so closely to the three-drug protocol that changing it should return the debate to square one, the senator argued.
"When the state elects to take a life of someone — no matter how heinous that person may be, no matter how deserving that person may be — there is a high public interest in how the State of Nebraska proceeds," Ashford said.
But there's hardly consensus among lawmakers that changing the protocol would require new legislation.
Sen. Mike Flood of Norfolk, speaker of the Legislature, authored the bill that replaced electrocution with lethal injection as the method of capital punishment.
The language of the legislation doesn't list the three drugs by name. Rather, it gives the Nebraska Department of Correctional Services the authority to determine the execution protocol.
"The bill we passed gives the Department of Corrections the ability to react," Flood said.
If Corrections Director Robert Houston were to propose a change to the lethal injection drug combination at some point, the department would conduct a public hearing. Such a proposed change also would be submitted to the governor for approval.
But those scenarios are purely theoretical at this time, said Dawn Renee-Smith, the department's spokeswoman.
"We have consistently said, and truthfully, there are no plans at this point to make a protocol change," she said.
The department spent $5,411 in September to buy 485 grams of sodium thiopental, Smith said. The drugs, obtained in two batches, expire in May and December 2013.
The importation of sodium thiopental was approved by regulatory agencies in both India and the United States, Smith said.
Nebraska lacked the proper permit to obtain its first supply of the drug, and therefore could not use it. That also was shipped from India, and the state used the same Calcutta pharmaceutical broker, Chris Harris, to arrange both purchases.
The CEO of Swiss pharmaceutical maker Naari said his company gave Harris the drug because he told them he would send it to Zambia for testing. Sodium thiopental still is widely used as a anesthetic in developing nations, and Naari was trying to develop a new market in the African country.
Instead, Harris sold the drug to the State of Nebraska, CEO Prithi Kochhar wrote in a letter to the chief justice of the State Supreme Court.
Naari officials oppose the use of their drugs for executions and have asked Nebraska officials to return the sodium thiopental.
In November, on the same day prison officials announced their new supply of the drug, Nebraska Attorney General Jon Bruning asked the Supreme Court to set an execution date for death row inmate Michael Ryan.
The inmate's lawyer subsequently characterized the drug as "stolen" and argued that Bruning should be removed from Ryan's case because his office advised the Corrections Department on the acquisition of sodium thiopental.
Harris didn't return emails or phone messages from The World-Herald.
But Harris told the Statesman, an English-language newspaper in Calcutta, that he crossed no legal or ethical boundaries in his dealings with the Swiss company.
"There was nothing illegal, and there was no wrongdoing," Harris told the Statesman.
He went on to say he was working to expand sales of sodium thiopental in the United States, adding that most of the demand comes from physicians.
Harris also said he would issue an official statement in January. Count Nebraska lawmakers among those who will be listening.
Contact the writer:
402-473-9587, joe.duggan@owh.com
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