LINCOLN — The Nebraska ACLU is urging the state to surrender its supply of a key lethal injection drug following a court ruling Tuesday in Washington, D.C.
If that happened, Nebraska would be unable to carry out the death penalty, and might be forced to join several other states in switching the drugs it uses in lethal injections.
U.S. Court of Appeals for the District of Columbia Circuit on Tuesday ruled that the Food and Drug Administration was in error in allowing sodium thiopental to be imported into the country without inspection for use in executions.
The case was brought by death-row inmates in Arizona, California and Tennessee, who argued that such foreign-made drugs, without an FDA review, might be defective.
The court said the ruling applied only to those three states and that Nebraska can keep its supply.
But Amy Miller of the Nebraska ACLU said the decision makes it “a shoo-in” that a lawsuit brought by a death-row inmate in Nebraska would be successful.
Miller urged Nebraska officials to avoid the cost of a lawsuit and surrender its supply of foreign-made sodium thiopental to the FDA.
“They have illegal drugs and they just need to turn them back over,” she said.
The Nebraska Attorney General's Office, which handles death penalty cases, declined to comment.
Attorney General Jon Bruning joined other state attorneys general in urging the FDA to challenge the lower court ruling that had prohibited the use of sodium thiopental obtained overseas.
The ruling by the U.S. Court of Appeals affirmed the lower court decision, though it did vacate a judge’s order that all states, including Nebraska, surrender their supplies of the drug.
Sodium thiopental is one of three drugs used by Nebraska and several other states to carry out executions. It puts the condemned inmate to sleep. Two other drugs are administered to paralyze the prisoner and stop his heart from beating.
States have been scrambling for supplies of sodium thiopental since the lone American manufacturer quit making it in 2009.
That has forced some states to change drugs or, like Nebraska, look overseas for new supplies.
Nebraska was forced to abandon its first foreign purchase in 2011 after it was discovered that the state lacked the proper permits to import the drug.
The state obtained a new supply through a broker in India and rejected a recall request from the Swiss manufacturer of the drug. The shelf life of that supply, however, is scheduled to expire in December.
Nebraska is one of 32 states with capital punishment. It switched its mode of execution from the electric chair to lethal injection in 2009 after electrocution was ruled cruel and unusual punishment.
The state has not carried out an execution since 1997, when convicted double-murderer Robert Williams was put to death.
This spring, for the first time in several years, a majority of state senators supported repeal of the state's death penalty. But lawmakers lacked the votes to stop a filibuster by opponents of the repeal measure.
In 1979, lawmakers voted to repeal the death penalty but could not overcome a veto from then-Gov. Charles Thone.