LINCOLN — A federal judge's ruling Tuesday in Washington, D.C., will block any executions from being carried out in Nebraska, at least for several months.
U.S. District Judge Richard Leon ruled that the U.S. Food and Drug Administration ignored the law by allowing the importation of foreign-manufactured sodium thiopental, a key drug used in executions by lethal injection.
The Washington-based judge, ruling on a case brought by death row inmates in Tennessee, Arizona and California, ordered the FDA to immediately notify any state correctional departments with foreign-manufactured thiopental that its use is prohibited by law and that the drug must be returned to the FDA.
That order would include Nebraska, which includes the powerful anesthetic as part of its three-drug protocol for lethal injection.
Jerry Soucie, a defense attorney representing two death-row inmates in Nebraska, said the ruling should put a halt to executions in Nebraska because the state will have to surrender its supply of sodium thiopental.
“It's a very big deal,” Soucie said.
A spokeswoman for the Nebraska attorney general said the office had not yet seen the court's decision. “But the U.S. Supreme Court previously rejected similar arguments by death row inmates,” spokeswoman Shannon Kingery said.
Tuesday's ruling is expected to generate an appeal, which eventually could rise to the U.S. Supreme Court.
But the appeals could take several months to resolve, thus potentially holding up any executions in Nebraska, unless the state joins 14 other states in changing the drugs it uses for executions or obtains a legal order blocking the confiscation of the sodium thiopental.
A leading death penalty supporter, State Sen. Mike Flood of Norfolk, the speaker of the Legislature, said he didn't think Tuesday's ruling would require a change in lethal injection drugs, but it does raise “another hurdle” in carrying out an execution.
Sen. Brad Ashford of Omaha, who opposes the death penalty, said the judge's ruling moves the issue another step closer to challenges of lethal injection as unconstitutional cruel and unusual punishment.
He also predicted that sodium thiopental would not be used “to execute anyone” in Nebraska.
Sodium thiopental is an anesthetic used to put a condemned person to sleep before two other lethal drugs are administered in the drug protocol chosen by Nebraska and several other states.
Manufacturers in the United States quit making the drug early last year, forcing states to look overseas for supplies.
Executions were delayed in some states, and at least 14 of the 34 states that have a death penalty switched to an alternative drug, pentobarbital.
In at least six of those states, federal Drug Enforcement Administration officials either seized or otherwise obtained supplies of sodium thiopental that were improperly obtained.
Nebraska officials have declined to switch drugs and have defended their steps in obtaining sodium thiopental overseas.
Soucie, who is with the State Commission on Public Advocacy, represents condemned murderers Carey Dean Moore and Michael Ryan, who are nearing the end of their available court appeals.
The attorney has been sparring with the state over whether it legally obtained its current supply of sodium thiopental.
In recent months, Nebraska abandoned a supply obtained from India amid questions over whether it was imported within the law.
Then Nebraska obtained a new batch of sodium thiopental from a firm in Switzerland via a broker. But that firm asked that Nebraska return the drug, saying it was never intended to be used for an execution and that the broker had deceived the company to export it.
Nebraska has not carried out an execution for 15 years, when it still used the electric chair. The state switched to lethal injection in 2009, after electrocution was ruled cruel and unusual punishment.
Ryan had been scheduled for execution this month — on March 6 — but it was stayed by the Nebraska Supreme Court while a lower court decided legal questions raised over the Swiss sodium thiopental.
On March 3, District Judge Dan Bryan of Geneva rejected Ryan's appeal that sought to overturn his death sentence over allegations that Nebraska had obtained a stolen supply of sodium thiopental.
That ruling had cleared the way to set a new execution date for Ryan. He was sentenced to die in 1986 for the slayings of two people connected to a cult he headed from a farm near Rulo, Neb. Tuesday's ruling, however, casts doubt on when a new execution date can be set.
This report contains material from the Associated Press.
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