LINCOLN — A push to execute 10 condemned men despite the repeal of Nebraska’s death penalty was confronted with yet another hurdle Friday when a federal agency said the state cannot import a critical lethal injection drug.
Gov. Pete Ricketts said he agrees with the attorney general that Nebraska should be able to execute its death row inmates upon receiving the drugs it recently bought from a broker in India.
The state has already paid $54,400 to replace two lethal injection drugs that had expired.
“Our plan is to proceed with the executions,” the governor said Friday during a press conference that marked the end of the 2015 legislative session.
In the 18 other states that have repealed capital punishment, no death row inmates have been subsequently executed, said Robert Dunham, director of the Death Penalty Information Center.
In two states that have abolished the death penalty — New Mexico and Connecticut — the fate of those on death row remains unsettled.
In Nebraska, the intentions of the governor and attorney general were thrown into doubt Friday when an official with the U.S. Food and Drug Administration said the state can’t legally import one of the two drugs, an anesthetic called sodium thiopental.
“At this time, we have no indication, aside from media reports, that sodium thiopental has recently been imported into the United States by state officials or correctional systems,” said Jeff Ventura with the FDA. “With very limited exceptions, which do not apply here, it is unlawful to import this drug, and the FDA would refuse its admission into the United States.”
The two drugs purchased from the foreign supplier are part of the state’s three-drug lethal injection protocol.
After being informed of the FDA’s statement, James Foster, a spokesman for the Nebraska Department of Corrections, said the agency has been advised by the attorney general that its actions are “proper and legal.”
“We are following all the legal procedures that the agency is aware of,” he said, adding that the drugs are being manufactured. “There is no FDA rule or case law that the agency is aware of that would categorically preclude the importation of these two drugs.”
The question of FDA oversight of foreign-manufactured lethal injection drugs stems from a 2013 court decision.
In Cook v. FDA, a federal court ordered the FDA to prohibit the importation of lethal injection drugs that fail to meet the agency’s standards. The part of the ruling on the FDA’s role in lethal injection drugs was upheld by the District of Columbia Circuit U.S. Court of Appeals.
Attorney General Doug Peterson has said the 2013 ruling does not apply to Nebraska because the state was not party to the case, which involved death row inmates in Arizona, California and Tennessee.
Dale Baich, assistant federal public defender in Arizona who represented inmates in the Cook case, called the attorney general’s conclusion “ridiculous.”
“If the drug is not FDA approved, it cannot be imported to the United States,” Baich said, explaining that the court ordered the agency to regulate importation of all lethal injection drugs.
The governor announced the purchase of the drugs on May 14. His office has not directly answered whether the drugs had met FDA approval. Rather, the governor’s spokesman has said that the drugs would be tested for purity by an independent laboratory after their arrival.
Ricketts said Friday that he had no timetable for when the lethal injection drugs will arrive from India. Based on emails obtained through a public records request, the supplier said he would ship the drugs within 60 days.
Under Legislative Bill 268, the death penalty would be repealed, effective in three months, and replaced by life in prison.
State Sen. Ernie Chambers of Omaha, the chief sponsor of the law, said that while the Legislature cannot change the death sentences of those already on death row, the repeal removed the statutory means for conducting an execution.
That, he said, leaves the death row inmates with a sentence that can’t be carried out.
Chambers said he told his fellow senators during debate on the repeal bill that the state would not be able to obtain the drugs. On Friday, he maintained that stance and predicted that the governor and attorney general would not succeed in their effort to carry out an execution.
The attorney general would first have to request a death warrant for one of the inmates, which would have to be approved by the Nebraska Supreme Court. Chambers said the court would carefully consider any legal questions surrounding the lethal injection drugs before setting an execution date.
“The governor and the attorney general aren’t dealing with politicians now, they’re dealing with judges who respect the law and the constitution,” Chambers said.
The Attorney General’s Office earlier had generally agreed that the men on death row would obtain de facto reprieves under the repeal. But Peterson now says that upon further review of court cases, he believes there remains a legal controversy over what happens to the 10.
Peterson said his office has found cases in which a state legislature has been barred from accomplishing something through legislation that it is blocked by the constitution from doing. In this case, that would be changing a sentence from death to life in prison.
“Our position is that the passage of the legislation should not affect the status of the 10 on death row because they’ve already been sentenced, and the lethal injection procedures that were in place are the ones that should be applied,” Peterson said.
The attorney general said his office would seek a declaratory judgment to clarify the issue from the Nebraska Supreme Court, probably in September, after LB 268 is scheduled to go into effect.
“It’s a legal question that needs to be clarified,” Peterson said.
In some other repeal states, the death row inmates had their sentences commuted to life in prison by governors or were ordered resentenced by the courts. Decisions on the fate of death row inmates in New Mexico and Connecticut are pending in the high courts of those states.
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