The Nebraska Department of Correctional Services' execution room.
The writer is associate dean and a law professor at the University of Nebraska College of Law. He has studied lethal injection for over a decade. This reflects his personal views, and he is not speaking on behalf of the law college or university.
Reasonable people can disagree about the moral propriety of capital punishment, but Nebraska’s new lethal injection protocol is insane. No state has ever executed anyone with this four-drug protocol. Indeed, the protocol’s first two drugs have never been used in any execution in this country.
Nebraska’s new protocol consists of diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.
Diazepam is another name for Valium; its primary purpose in the protocol is presumably to relax the inmate. Fentanyl citrate is an opioid sometimes used with other drugs in general or regional anesthesia. Fentanyl abuse, like opioid abuse more generally, is part of a national health crisis. Cisatracurium besylate is a paralytic. Potassium chloride stops the heart.
When injected into someone who is improperly anesthetized, potassium chloride causes excruciating pain akin to being burned alive from the inside. Nobody disputes that the injection of potassium chloride alone would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
The primary problem with Nebraska’s new protocol is that it creates a serious risk that the inmate will be improperly anesthetized before delivery of the potassium chloride — and that the paralytic will conceal the inmate’s excruciating pain from onlookers.
The state has offered few explanations about its new protocol, but presumably it intends the first two drugs to anesthetize the inmate from pain caused by the potassium chloride. It is far from clear that these drugs (alone or together) can safely perform this anesthetizing function. Even if they can in theory, there are good reasons to worry they will not properly anesthetize the inmate in practice.
For one, Nebraska has concealed all information about the drug providers, so we don’t know whether the drugs have been safely produced and stored. Drugs obtained on the black market or produced in inadequate facilities, such as some compounding pharmacies, can be contaminated, impure, subpotent or otherwise flawed. Any of these flaws could undermine a drug’s effectiveness and subject an inmate to agonizing pain.
Additionally, even if the drugs are safe, the state might not be able to anesthetize capital inmates adequately if properly trained medical professionals do not administer the drugs and monitor the inmate’s anesthetic depth. Though the protocol promises that execution team members shall complete “training,” it is short on specifics. Underqualified personnel have contributed to badly botched executions in other states.
For these reasons, there is good cause to be concerned that the inmate might not be properly anesthetized following the delivery of the first two drugs. But because the third drug is a paralytic, the inmate could lie on the gurney suffering excruciating pain without anyone knowing.
Partially for these reasons, a Nevada judge halted that state’s use of a similar protocol. It is worth emphasizing that the Nevada protocol did not include potassium chloride, the drug that indisputably causes agonizing pain. The Nebraska protocol — which adds potassium chloride to the Nevada protocol — is far worse than the one the Nevada judge found problematic.
It is hard to know precisely why Nebraska officials selected such a dangerous protocol. In recent years, many drug companies have made clear they do not want their products used to kill people. As correctional departments increasingly have difficulty obtaining drugs for executions, many have recklessly experimented with new lethal drug combinations. These state solutions are only temporary. Drugs expire, so state officials need to find new drugs on a regular basis. But drug companies won’t change their minds, so states inevitably will continue to encounter great complications and expense in their search for death drugs.
In fairness to state officials, Nebraskans voted in 2016 to restore the state’s death penalty. It is therefore understandable that officials want to carry out the will of the people. However, constitutional rights are not decided at the ballot box, and the Eighth Amendment protects against excruciating executions. The state is fooling itself and misleading its citizens in offering the new protocol as a safe, constitutional, long-term solution.
