Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.

Nebraska's Attempt to Import Execution Drug Halted in India

A shipment of sodium thiopental, an anesthetic once widely used in executions, was recently stopped in India before it could reach Nebraska. The Indian distributor sold more than $50,000 worth of sodium thiopental to the state in May, but the shipment was stopped before leaving the country because of "improper or missing paperwork." FedEx said it halted the shipment because it did not have Food And Drug Administration clearance: "As with any international importation of a drug, data about that shipment is transmitted to federal agencies in advance, including U.S. Customs and the Food and Drug Administration. If the shipment is authorized, we will deliver it to the recipient; if it is not, we will return it to the foreign shipper." Nebraska purchased the drugs despite the FDA's warning that importation of sodium thiopental for executions violates federal law. The FDA has consistently said that it will not allow execution drugs into the U.S. because the producers are not FDA-credited and the drugs are not approved for that purpose.

Ohio Warned Not to Import Execution Drug

A Food and Drug Administration letter to the Ohio Department of Rehabilitation and Correction indicated the state was considering importing sodium thiopental from overseas for use in executions. The letter warned the department that importing the drug would violate federal law: "Please note that there is no FDA approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States." A similar letter was sent to Nebraska officials after the state spent over $50,000 in an attempt to obtain lethal injection drugs from a source in India. All executions were put on hold in Ohio after the botched execution of Dennis McGuire in 2014, as the state has pursued a new execution protocol. The potential foreign supplier was not revealed because Ohio, like many other states, keeps the identity of execution-drug suppliers secret.

Urban League President Calls for Reconsideration of Death Penalty

Highlighting the recent abolition of the death penalty in Nebraska and concerns about wrongful convictions, National Urban League President Marc H. Morial (pictured) called for an end to executions. In an op-ed for The Philadelphia Tribune, Morial cited declining public support for the death penalty: "56 percent of Americans support the death penalty, this from a high of almost 80 percent in the mid-90s," he said. He also emphasized the growing conservative opposition to the death penalty, which was critical in bringing about repeal in Nebraska. "There are many experts who contribute much of today’s sea change in attitudes towards capital punishment to the growing number of conservatives coming to the frontlines of the opposition movement to the death penalty, questioning its efficacy and fiscal soundness," Morial said. Finally, he pointed to the stories of those exonerated from death row, saying, "No matter where you may stand on the death penalty debate, where is the value in maintaining a system that could likely execute an innocent man or woman?" He concluded, "As long as questions of equity, fairness and fallibility persist, we must stop executions and give death row inmates every chance to prove their innocence."

Nebraska Repeals Death Penalty

The Nebraska legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska becomes the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It is the first predominantly Republican state to abolish the death penalty in over 40 years, and state legislators said Republican support was critical to the bipartisan repeal effort. Sen. Jeremy Nordquist said, "This wouldn't have happened without the fiscally responsible Republicans who aren't just beholden to conservative talking points, but are thoughtful about policy." Sen. Colby Coash cited fiscal concerns among his reasons for supporting repeal: "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years. This program is broken."  The sponsor of the repeal bill, Independent Senator Ernie Chambers, opened the repeal debate with a reference to the historic nature of the pending vote. “This will be the shining moment of the Nebraska Legislature,” he said. “The world, by anybody’s reckoning, is a place filled with darkness, contention, violence. We today can move to lift part of that cloud of darkness that has been hovering over this state for all these years.”

NEW VOICES: George Will Says "Capital Punishment is Withering Away"

Conservative commentator George Will has decribed capital punishment in America as "withering away." In his syndicated column in the Washington Post, Will outlines a conservative case against the death penalty, highlighting Nebraska's recent legislative vote to repeal capital punishment. Writing that "exonerations of condemned prisoners and botched executions are dismayingly frequent," Will lists three primary reasons why he believes conservatives should oppose capital punishment: "First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program...Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated." Will recognizes that there is an urge to severely punish the worst crimes, saying, "Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality." However, he says, this satisfaction is "purchased with disproportionate social costs." America, he says, is exhibiting "a healthy squeamishness" about the death penalty "that should herald abolition."

Nebraska Repeal Vote Reflects Growing Republican Opposition to Death Penalty

Nebraska's unicameral legislature recently voted 30-13 in favor of repealing the State's death penalty, advancing the bill to a second round of legislative review. (In Nebraska, a bill must pass three times before it is sent to the Governor.)  A majority (17 out of 30) of Republican legislators voted in favor of the bill, which was also supported by 12 Democrats and one Independent legislator. Sen. Colby Coash (R-Lincoln), said, "If any other system in our government was as ineffective and inefficient as is our death penalty, we conservatives would have gotten rid of it a long, long time ago." Sen. Tommy Garrett (R-Papillion) said he was once a "staunch proponent" of capital punishment, but, "I’ve come to believe that the death penalty is simply not good government.” A Washington Times op-ed by conservative commentator Drew Johnson noted that Nebraska's repeal bill has support from victims' families, the Catholic Bishops of Nebraska, and Nebraska Conservatives Concerned about the Death Penalty. Johnson also pointed to the DNA exonerations of the "Beatrice Six," who gave coerced confessions and pleas after being threatened with the death penalty, as evidence that "government has no business exercising the power to kill its residents, whether in Nebraska or elsewhere." A recent Pew poll showed that support for the death penalty among conservative Republicans had dropped by 7 percentage points since 2011.

RECENT LEGISLATION: Varied Coalition Seeks Repeal of Nebraska's Death Penalty

UPDATE: The repeal bill unanimously passed out of the Judiciary Committee on Mar. 9. Earlier: At a Nebraska legislative hearing on March 4, dozens of people testified in favor of abolishing the death penalty, including representatives from families of murder victims, from law enforcement, the judiciary, and Nebraska Conservatives Concerned about the Death Penalty. Among the co-sponsors of the bill to replace the death penalty with life without parole are seven Republican legislators. Jim Davidsaver, a retired Lincoln police captain, submitted testimony saying, "[M]y professional experience has shown me that our state’s death penalty does not make us any safer. Its exorbitant cost actually detracts from programs that would promote the overall health, safety and welfare of our communities." Elle Hanson, who lost three loved ones to murder, said the death penalty was applied arbitrarily, "I want to share the pain and outrage I feel when I hear politicians say that we need the death penalty for the worst of the worst. This is an absurd notion. I guarantee you, each of our losses is the worst of the worst." Sen. Ernie Chambers (pictured) of Omaha, who introduced the bill, said he expects it to be debated by the full legislature this session. Only one person, a County Attorney, testified against the bill.