Nebraska notifies second inmate of lethal injection drugs for execution

January 21, 2018 GMT

LINCOLN — A second death row inmate has been notified by the Nebraska Department of Correctional Services of the lethal injection drugs that would be used in his potential execution.

Prisons Director Scott Frakes notified Carey Dean Moore that diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride are to be used and were on hand, as of Oct. 10, and an additional supply of diazepam and fentanyl were received Friday.

The drug supply already owned by the department has been tested, and the new shipment will be tested, according to department spokeswoman Dawn-Renee Smith. They are the same drugs to be used in the potential execution of condemned killer Jose Sandoval, who was notified of the drugs on Nov. 9.

The Nebraska death penalty protocol requires the director to provide notice to the condemned inmate at least 60 days prior to the attorney general’s request to the Nebraska Supreme Court for an execution warrant.

Moore, 60, was sentenced to death on two counts of first-degree murder in Douglas County in the 1979 deaths of two Omaha cab drivers. He is housed at the Tecumseh State Correctional Institution.

Moore has had multiple execution dates, the latest in 2007 and 2011, and all of them were stayed. Nine months after the 2007 date, execution by electric chair was declared unconstitutional by the Nebraska Supreme Court. Before the June 2011 date, the state’s high court issued a stay after his lawyer challenged the purchase of one of the lethal injection drugs to be used and the lethal injection law itself.

The department again on Friday refused to disclose the supplier of the lethal injection drugs, as it did in November. The ACLU of Nebraska filed a lawsuit in December, asking a judge to find that the department had violated the state’s open records laws and to force Frakes to release the records. A coalition of Nebraska newspapers and broadcasters, including the Lincoln Journal Star, has joined the legal battle for release of the information.

The combination of drugs chosen by the department for the two executions has never been used for that purpose. Nevada has chosen three of the drugs for its execution protocol: Fentanyl, a painkiller and anesthetic; diazepam, a sedative better known as Valium; and cisatracurium, a muscle relaxant that causes paralysis.

Nebraska’s fourth drug, potassium chloride, is used to stop the heart.

In November, the New York pharmaceutical company Pfizer asked Nevada officials to return its fentanyl and diazepam, saying their policies prohibit the use of their drugs in executions, according to the Reno Gazette-Journal. A spokeswoman for the Nevada Department of Corrections said the agency was under no obligation to return the drugs because they were purchased from a wholesale pharmaceutical distributor.

ACLU Executive Director Danielle Conrad said Friday that issuing a notice of execution in the wake of ongoing litigation is a waste of taxpayer dollars.

All individuals sentenced to death in Nebraska are involved in multiple legal challenges about the nature of Nebraska’s execution protocols, she said. The state can’t obtain an execution warrant while the claims are outstanding.

No date has been set for the execution of Moore or Sandoval, which Attorney General Doug Peterson would request.

“Nebraskans have a right to know what is happening with their taxpayer dollars and are left to wonder what the Department of Corrections and Governor Pete Ricketts are hiding,” she said.

Nebraska has not executed a condemned prisoner for 20 years. After the Legislature repealed the state’s death penalty in 2015, a referendum petition drive and subsequent vote of the people in November 2016 nullified the repeal.

A year later Frakes issued the first notification of lethal injection drugs to Sandoval, and two months after that to Moore.

Longtime death penalty opponent, Omaha Sen. Ernie Chambers, criticized Ricketts and Peterson, saying they used the notifications as a chip to play in their re-election bids.

“This is a media ploy to make it appear that they are being tough on crime, protecting the public, delivering on campaign promises and the rest of it,” he said.

There are far deeper, more serious issues involved that a court would grapple with should a request be made that it issue a death warrant, Chambers said.

“But I think in the state of confusion that exists now in reference to drugs, the court is not going to issue a death warrant,” he said.