With the supply of a key lethal injection all but dried up, Gov. Dave Heineman and Attorney General Jon Bruning announced Monday that Nebraska will change its protocol for carrying out the death penalty.
Nebraska's three-drug, lethal injection protocol calls for a dose of sodium thiopental to knock out the inmate, followed by pancuronium bromide to cause paralysis, then potassium chloride to stop the heart. But sodium thiopental now is next to impossible to buy, and Nebraska's supply of the drug expired in December.
Heineman said he has instructed the Department of Correctional Services to begin the process -- which will include a series of public hearings -- to change Nebraska's lethal injection protocol.
Nebraska and several other states that include sodium thiopental in their execution protocols were forced to buy the drug overseas when the last U.S. manufacturer quit making it in 2010 because of death penalty opposition from customers. Sodium thiopental recently was banned for export by the European Union. It is still made in India and China, but defense lawyers have questioned its quality.
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Nebraska has not executed anyone since 1997.
Nebraska went to lethal injection as its means of execution after the state Supreme Court ruled in 2008 that the electric chair was cruel and unusual.
Many death penalty states have switched to pentobarbital, commonly used for animal euthanasia. But Danish manufacturer Lundbeck has said it would block sales to states that want to use it to execute people.
Texas, South Dakota and Georgia have turned to private compounding pharmacies to make their pentobarbital. South Dakota already has executed two people using the drug from a private pharmacy.
Defense lawyers are mounting legal challenges to the compounding pharmacy drugs, which are not approved by the U.S. Food and Drug Administration. A federal lawsuit filed in Texas says the use of such untested drugs for an execution would violate the constitutional protection against cruel and unusual punishment.
In 2011, Oklahoma changed the language of its law to remove reference to specific drugs.
Last year, a three-judge panel of the U.S. Court of Appeals District of Columbia Circuit ruled that the sodium thiopental acquired overseas by Nebraska and several other states for use in executions should not have been allowed into the country.
That came in an appeal of a ruling last year by U.S. District Judge Richard Leon, who said the FDA must order states that have foreign-manufactured sodium thiopental to surrender it. The appeals court said, however, that the states did not have to give it up because Leon's order was too broad and didn't apply to them because they were not part of the original lawsuit against the FDA.
But the court said the FDA cannot allow future shipments of such unapproved drugs into the United States, and it rejected the federal agency's argument that it had discretion to do so. The appeals court also said any imported drugs must be reviewed for safety and effectiveness and must come from FDA-registered foreign drug makers.
A report released last month by the Death Penalty Information Center said U.S. death sentences in 2013 were near their lowest level since 1976.. And public support for the death penalty, as measured in the annual Gallup poll, declined to 60 percent, its lowest level in 40 years.
Richard Dieter, executive director of the Death Penalty Information Center, said one of the reasons for the decline in executions in 2013 was the problems states are having in establishing acceptable execution protocols.
Thirty-seven people have been executed in Nebraska, including three since 1976, when the U.S. Supreme Court reinstated the death penalty. There are 11 men on Nebraska's death row.