LINCOLN — The governor hopes to resuscitate Nebraska’s moribund death penalty now that 60 percent of voters have said they want state-sanctioned executions to resume.
Gov. Pete Ricketts said Wednesday that he plans to work with Attorney General Doug Peterson to identify a path to execute the 10 men on Nebraska’s death row. Prison officials lack two of three required lethal injection drugs, but Ricketts halted pursuit of the drugs about a year ago pending the results of Tuesday’s referendum vote.
“Now that we have the will of the people on this subject, I will be working with the attorney general to get the substances to carry out the sentences,” Ricketts said during a press call from China, where he is on an agriculture-related trade mission.
Given the difficulty in obtaining one of the drugs, officials may have to change the lethal injection protocol to use a different execution drug or combination of drugs. Such a protocol change would require public hearings but could be accomplished over the course of several months without approval by lawmakers.
But that doesn’t mean a Nebraska inmate will be put to death anytime soon.
The sponsor of the Nebraska Legislature’s 2015 repeal of capital punishment sounded undefeated Wednesday as he promised to introduce a new measure abolishing the death penalty in January. State Sen. Ernie Chambers of Omaha also said he’s contemplating a legal challenge of Tuesday’s outcome, although he declined to offer details.
“This governor will be out of office before they come close to being able to carry out an execution,” Chambers predicted. Ricketts is nearing the end of his second year as the state’s top executive.
The Legislature repealed the death penalty last year over the governor’s veto. Death penalty supporters quickly rallied around a petition drive to put the repeal up for a public vote on Tuesday, when 61 percent of 792,000 voters chose to reinstate capital punishment.
Ricketts spent $300,000 of his personal money on the pro-death penalty campaign. Based on his discussions with voters across Nebraska, Ricketts said he was not surprised by Tuesday’s margin of victory.
Now the Ricketts administration will try to do what has never been done before in Nebraska: execute a condemned killer via lethal injection.
The method was adopted in 2009, a year after the Nebraska Supreme Court struck down the electric chair as cruel and unusual punishment. The state last executed a death row inmate in 1997.
The major roadblock to lethal injection in Nebraska has been obtaining the three drugs called for in the protocol: sodium thiopental, which puts the inmate to sleep; pancuronium bromide, which stops breathing; and potassium chloride, which stops the heart.
Last year, the administration paid for fresh supplies of the first two drugs from a broker in India, but the drugs have not been received. That’s due largely to the U.S. Food and Drug Administration banning importation of sodium thiopental, an anesthetic no longer licensed for use in the United States.
The broker has since refused the state’s request for a refund of the $54,400 paid for the drugs. State Auditor Charlie Janssen is investigating the failed purchase at Chambers’ request.
The attorney general said Wednesday that his office will advise the governor and the Department of Correctional Services on how to proceed with executions in a constitutional manner. Peterson added that changing the protocol would probably be the best way forward.
Several states, including Oklahoma, have three-drug lethal injection protocols using different drugs that have passed the scrutiny of the courts, Peterson said. In past statements, the governor has mentioned Missouri, which executes death row inmates with a single drug called pentobarbital, the same substance used to euthanize animals.
But major pharmaceutical companies, including the one that makes pentobarbital, don’t want their drugs used in executions. So Missouri obtains its drug from an independent compounding pharmacy and it has a law that shields the identity of the pharmacy.
Peterson said Wednesday that it’s too early to say whether Nebraska should pass such a secrecy law, which suppliers say they need to avoid harassment by death penalty foes. He also declined to estimate how soon the state’s death penalty could return to viability.
Of the 10 men on death row at the Tecumseh State Prison, two have pretty much exhausted their appeals.
J. Kirk Brown, a former attorney general who routinely argued death penalty cases for the state, said he thinks a change in protocol makes the most sense. And he personally would favor a law blocking the identity of drug suppliers.
“It’s far from an insurmountable undertaking,” Brown said.
But death penalty opponents say no matter what protocol the state adopts, it will be just a matter of time before new roadblocks appear. Eric Berger, a University of Nebraska law professor, also said using a compounding pharmacy would almost certainly trigger legal challenges by inmates concerned about the purity and effectiveness of custom-made drugs.
“I still think the state is likely to run into obstacles that, at the very least, could delay execution,” he said. “Or at the most, make it impossible to carry out a death sentence in the future.”
|Legislative Bill 268|
|A vote to "retain" was to kept the Legislature's repeal of the death penalty. A vote to "repeal" was to undo the law and keep the death penalty in place.|
|Results in 10 largest counties|
|Legislative Bill 268|
|Counties with highest percentage of votes to repeal|
|with lowest percentage of votes to repeal|