Nebraska Gov. Ricketts defends death penalty proposal

November 30, 2016

LINCOLN, Neb. (AP) — Nebraska Gov. Pete Ricketts defended a proposal Tuesday that would allow the state to obtain lethal injection drugs without disclosing its supplier, saying it would provide greater flexibility to move forward with executions after voters reinstated the death penalty earlier this month.

The administrative proposal announced Monday would let the Nebraska Department of Correctional Services’ director choose which drugs are used in an execution and withhold the name of the supplier. Ricketts said the current administrative rules and three-drug lethal injection protocol were “more restrictive” than what state law allows.

“We’re really not changing anything with regard to confidentiality,” Ricketts said at a news conference on an unrelated subject. “Claims of secrecy really just aren’t founded.”

Ricketts argued that the changes are already allowed under a 2009 state law which changed the protocol from electrocution to lethal injection. That law allows the identities of “all members of the execution team” to remain confidential. Ricketts said the proposal would count a pharmacist or a pharmaceutical chemist as a part of the execution team, and thus exempt from public disclosure.

The corrections department would also have to notify condemned inmates which drugs were chosen, the quantities to be used and the order in which they’d be administered at least 60 days before the Nebraska attorney general’s office requests an execution warrant. Ricketts said the 60-day window gives inmates “plenty of time” to appeal.

Nebraska’s last execution took place in 1997, using the electric chair. The state switched to lethal injection after the Nebraska Supreme Court declared the electric chair unconstitutional, but officials have never used the current three-drug protocol in an execution.

Certain lethal injection drugs have become virtually impossible to obtain in the United States or Europe because companies, fearing a public backlash, have refused to sell them.

Ricketts spokesman Taylor Gage said the cost of the drugs would remain a public record under the new proposed protocol.

Nebraska spent more than $54,000 last year on lethal injection drugs from a company based in India, but never received them because federal officials blocked the shipment. Chris Harris, the company’s CEO, declined the state’s request for a refund.

Nebraska’s death penalty spent more than a year in limbo after lawmakers abolished the punishment in 2015, overriding Ricketts’ veto. Voters reinstated capital punishment earlier this month through a ballot measure partially financed by Ricketts.

Death penalty opponents have promised to fight any attempt to shroud the process in secrecy.

The American Civil Liberties Union of Nebraska said the corrections department should be taking extra steps to maintain transparency and accountability given its history of high-profile missteps. Two inmates escaped from a Lincoln prison earlier this year because staff members failed to follow security procedures. In 2014, under a previous administration, prison officials acknowledged that they had miscalculated hundreds of inmate sentences and failed to follow a Nebraska Supreme Court ruling.

University of Nebraska-Lincoln law professor Eric Berger said the proposed protocol raises new legal questions that will likely end up in the courts.

“It violates the Nebraska norm of open and transparent government,” said Berger, who worked with death penalty opponents during the recent ballot campaign. “It also creates the risk of a botched execution. When they have that secrecy, (state officials) may feel they don’t need to be as careful.”

Berger said the decision not to stick with one specific protocol suggests that state officials could try to use different drugs on different inmates, depending on what’s available. Doing so would force them to “reinvent the wheel” for every execution and relearn the properties of a particular drug, he said.

Berger said other parts of the proposal are vague. For instance, the drugs would have to be tested at least 60 days before an execution, but Berger said it’s not clear who would test them. Additionally, Berger said the proposal could make it impossible to know whether the corrections director is getting advice from qualified medical experts when selecting the drugs.

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