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.