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Thursday, June 04, 2015

Got Drugs?

Nebraska’s Governor said he did (or at least promised they were on the way) while trying to fend off the state’s repeal of the death penalty last week.  For those who missed this nail-biter, Nebraska’s unicameral legislature had voted to repeal the death penalty, the governor had vetoed the repeal measure, and the legislature was gearing up to override the veto (they needed 30 votes, and pulled exactly 30). 

Nebraska is the first Republican-controlled state in over 40 years to repeal the death penalty, a fascinating account in a number of ways.  I’m not sure it’s “a Nixon-visits-Red-China moment” but it’s big.  When it makes a John Oliver segment, you know it’s big (and messed up in some strangely entertaining way). 

It’s fascinating that Governor Pete Ricketts responded with the tweet: “My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families.”  I found myself shouting at my computer when I read this, like some crazy sports fan yelling at the TV.  “Are you serious?” I asked (expletives redacted).  “Are you aware that Nebraska hasn’t had an execution in almost 20 years?  You do know that your death row of 11 just dropped to 10 because another guy died waiting to be executed, right?”  Nebraska’s death penalty was a waste of time and money, which is part of the reason conservatives voted to repeal it.

But what I find especially fascinating is the role that lethal injection drugs—or more accurately, the lack thereof—played in Nebraska’s repeal.  Here’s the backstory:

When drug manufacturer Hospira pulled out of the sodium thiopental market in early 2011, death penalty states scrambled to replace the supplier.  They had to.  Thiopental was the first drug in the then-standard three-drug lethal injection protocol. 

Nebraska was memorable in this regard because it bought thiopental from a broker in India, who, as it turned out, had gotten the drug from a Swiss manufacturer that was adamantly opposed to the use of its product in executions.  When the Swiss manufacturer found out, it demanded that Nebraska give its drugs back.  Nebraska said no.  (My colleague Jim Gibson and I detail this story and others in a forthcoming article on the international market for death penalty drugs). 

Fast forward to 2015.  Nebraska has been out of thiopental for years, everyone knows the drug isn’t gettable any longer, and the legislature is about to override the governor’s veto.  On the eve of the vote, the governor makes an announcement: he’s got the drugs.  $54,000 later, they’re on their way—from the same broker that sold the state someone else’s drugs in 2011.  No need to repeal, Nebraska can start executing again.  Maybe the rest of the country can too.

Except, hold up.  The thiopental shortage wasn’t just about suppliers refusing to sell.  It was also the result of a 2013 DC circuit court decision forcing the FDA to enforce its import controls, which basically put the kibosh on states’ efforts to import thiopental for lethal injection purposes, a “concededly misbranded” use. 

The Nebraska Attorney General says the DC circuit decision doesn’t apply to it because it wasn’t a party to the case.  I’m yelling at my computer again.  Does the state AG really think Nebraska is exempt from FDA enforcement of import controls because it wasn’t a party to the case that started the enforcement? 

The FDA said this in response: “With very limited exceptions, which do not apply here, it is unlawful to import this drug, and the FDA would refuse its admission into the United States.”

Nebraska says it’s going ahead with the executions, despite the repeal, as soon as the drugs come in—which I think means never, but its claim of authority for doing so is the topic of my next post.

In the meantime, I find myself wondering whether the administration’s actions here were just a political ploy, or whether the problems with procuring death penalty drugs have become a bona fide tipping point for repeal and/or retention.  If the latter, then the international market for death penalty drugs has had an impact indeed.

Posted by Corinna Lain on June 4, 2015 at 02:25 PM in Criminal Law, Law and Politics | Permalink


Stop putting my name in scare quotes. It's my name.

Posted by: Gloober | Jun 5, 2015 11:54:36 AM

Thanks for the article. For those who use the link, remember to take off the period (".") when accessing the article.



These two provide a negative view on the question.

Posted by: Joe | Jun 5, 2015 10:04:47 AM

Hadar--thanks for writing in, I'm a huge fan of your work. I think you're right, and one question I've been wondering is--are death penalty politics extreme at the moment because politics are a bit crazy, or is it because the death penalty makes politics crazy?

and to "Gloober," I agree with you, and Judge Kozinski, 100%--if the state is going to shed blood in our name, then it shouldn't be something masquerading as a medical procedure. Good point as to your question--it's the governor, and AG, saying that they're determined to execute those on death row despite the repeal.

Joe: Nice point. My colleague John Douglass just published a great article on how Virginia's death penalty is not about the death penalty anymore, but instead serves as a club to force guilty pleas. http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Douglass-493.pdf. Is that a good thing or bad?

Posted by: Corinna | Jun 5, 2015 9:01:08 AM

I am against the death penalty and don't think writ large its abolishment will threaten the well being of the state.

For the sake of argument, I would just note that one thing that some flag is that the death penalty encourages guilty pleas. The fact so few are executed makes me question that but the point is raised.

Posted by: Joe | Jun 4, 2015 4:45:10 PM

Your penultimate paragraph is confusing. Who is "Nebraska," exactly, as you use it there? (I take it you don't mean the legislature, since they repealed the law and then overrode the veto.)

And why isn't this drug-availability question just as much a "sideshow" (in your words) as anything else? Want the death penalty to persist even without access to the drugs? Pick another method -- preferably one (as Judge Kozinski recently argued) that captures the gruesome inhumanity of the punishment, not one that pretends it's a painless (and therefore socially unremarkable) medical procedure.

Posted by: Gloober | Jun 4, 2015 2:51:29 PM

Great post, Corinna. And, interestingly, on the same week that Jerry Brown bends over backwards to reactivate the death penalty in CA. I'd like to think about this as the Balrog's last tail-whip.

Posted by: Hadar Aviram | Jun 4, 2015 2:47:44 PM

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