LINCOLN — Attorney General Jon Bruning expects that another year will pass before Nebraska can be ready again to carry out its death penalty.
The state’s top justice official blames the delay on the shortage of execution drugs, the state prison sentencing fiasco and the November elections.
The three events combined to leave Nebraska without a means of executing the 11 men now on death row, he said.
They also have put efforts to find an alternative on hold.
“Death row is sort of in limbo today,” Bruning said. “I wish we had been prepared to try to provide the answer this summer and fall, but we ended up being diverted.”
He commented on the status of Nebraska’s death penalty in an interview last week.
The state lost its ability to carry out an execution earlier this year, when its supply of sodium thiopental expired.
Nebraska’s execution protocol calls for sodium thiopental to be the first of three drugs administered to kill condemned prisoners.
Until 2009, the three-drug combination was the most common method of carrying out lethal injection around the country. It has never been put to use in Nebraska.
The state has not executed anyone since 1997, before it switched methods from the electric chair to lethal injection.
Supplies of sodium thiopental dried up after an American drugmaker stopped manufacturing it and the European Union, urged on by anti-death-penalty activists, banned its export for executions.
Nebraska bought its last supply of the drug from a broker in India.
Bruning said there are several alternatives Nebraska could pursue to overcome execution barriers. But state officials may not have an easy road to that end.
State Sen. Ernie Chambers of Omaha, an adamant opponent of the death penalty, said he will fight every attempt to make executions possible again.
“I would fight tooth and nail, or fang and claw, against what Bruning is talking about,” he said. “It’s not going to be an easy thing for anything to be done that will facilitate carrying out judicial executions.”
One option would be sticking with the three-drug method and having sodium thiopental made at a compounding pharmacy.
Nebraska could buy from a private pharmacy, hire someone to compound it or join with a consortium of other states to have it compounded, Bruning said.
Another option would be switching to a different execution drug or combination of drugs, as have many other death penalty states.
Before making such a switch, state officials would have to change the Department of Correctional Services’ rules and regulations. Those rules currently spell out the three-drug protocol.
Bruning said he would recommend broader rules that would not specify what drug or drugs are to be used and would leave that decision up to the Corrections director for each execution.
“The advantage to that is, when you pick one option, like Nebraska has, then the anti-death penalty litigation machine lines up against whatever the scarcest of those (drugs) is,” he said. “They can create a bottleneck.”
But Chambers said the Corrections director should not be allowed to make that kind of life-and-death decision, considering the numerous Corrections Department failures that have come to light this year.
“That kind of authority cannot be entrusted to a slipshod, slapdash, incompetent operation such as that,” he said.
Chambers also wondered whether current law gives too much policymaking authority to Corrections officials. By law, the department chooses the execution drugs, then spells out its method in rules.
Bruning said a rules change would be “very doable.” It could be completed within 90 days and would not need legislative approval, he said.
The state could have been well on its way to rewriting the rules and deciding what execution drug or drugs to use if the prison sentencing problems had not intervened, Bruning said.
The World-Herald revealed in June that State Corrections officials were not properly calculating mandatory minimum sentences and, as a consequence, were letting inmates out early.
The department’s top two attorneys retired after being blamed for the problem. The two ignored two Nebraska Supreme Court rulings on the sentencing issue.
Other department officials have been busy dealing with fallout from the revelation, including a legislative investigation into the miscalculations, Bruning said.
Now, with barely two months left in his term of office, he said it will fall to the new governor and attorney general to decide “if and when” they want to address the state’s death penalty.
Bruning did not seek re-election this year, choosing to run for governor instead. He was defeated in the GOP primary.
James Foster, a Corrections spokesman, said Director Mike Kenney plans to work with the new administration on identifying the steps needed to prepare for carrying out an execution.
He did not say whether the department is looking at any changes in the current protocol, which follows the injection of sodium thiopental with one of pancuronium bromide, which causes paralysis, and finally potassium chloride, which stops the heart.
According to the Death Penalty Information Center, the most common alternative drug is pentobarbital, which has been used in 14 states.
A sedative, pentobarbital is often used to euthanize animals. But supply problems cropped up last year after the drug’s Danish manufacturing company refused to sell it for executions.
Other states have tried combinations of midazolam, hydromorphone and other drugs. Three such executions have gone awry, with the inmates taking a prolonged time to die.
Contact the writer: 402-473-9583, email@example.com