LINCOLN — If Nebraska wants to keep a viable death penalty, it needs to change the drugs used to chemically end someone's life, an expert on capital punishment said Wednesday.
A federal appeals court ruling Tuesday effectively ruled out the use of a key drug used in lethal injections and will add momentum to the movement to repeal capital punishment, said Richard Dieter of the Death Penalty Information Center.
“This is another delay,” Dieter said. “It makes the death penalty ineffectual.”
State Sens. Ernie Chambers and Brad Ashford, leading death penalty opponents, agreed.
“It shows that the whole death mechanism is fraught with so many flaws that the prudent thing for the state to do is to abolish the death penalty,” Chambers said. “The only reason for maintaining it is political.”
Tuesday's ruling involved a case brought by death-row inmates in Arizona, California and Tennessee.
The Washington, D.C., court agreed that the U.S. Food and Drug Administration violated federal policies by failing to approve imports of sodium thiopental, one of three drugs used in lethal injections.
While the ruling did not directly affect Nebraska's supply of the drug, Dieter and others said any attempt to use it would inspire a legal challenge that would likely block an execution.
Bob Houston, director of the Nebraska Department of Correctional Services, said his agency is not considering a switch at this time.
“We work with Attorney General's Office in matters relating to execution,” Houston said. “There's really nothing about this recent action that moves us to do anything different.”
The state's supply of sodium thiopental will expire in December. After that, Houston said he would confer with the attorney general.
Nebraska Attorney General Jon Bruning and Gov. Dave Heineman were reviewing the court decision, their spokeswomen said.
“I believe strongly in the death penalty and will continue to work to ensure we have a legal means of carrying it out,” Bruning said in a prepared statement.
In January 2012, Bruning suggested that the state might need to change its drugs to avoid the “circus sideshow” that had emerged. But no action followed.
The ACLU of Nebraska called on the state Tuesday to voluntarily surrender its supply of sodium thiopental.
Chambers also called on the state to give up its drugs and avoid the time and expense of a court challenge “it is certain to lose.”
The ACLU said Wednesday it was filing a public records request to see whether Nebraska had obtained other supplies of sodium thiopental. A corrections department spokesman said it had not.
Nebraska adopted lethal injection in 2009 after its previous means of carrying out the death penalty, the electric chair, was declared unconstitutional cruel and unusual punishment.
The state, which hasn't had an execution since 1997, has faced several complications with lethal injection, including having to abandon its initial supply of sodium thiopental because it lacked the proper authority to import it.
Sen. Mark Christensen of Imperial, who supports the death penalty, said he has no problem with the state changing its death drugs. He said the state might also look at a backup plan for executions if lethal injection is blocked, such as firing squads.
In 2010, Utah death-row inmate Ronnie Lee Gardner chose a firing squad instead of lethal injection for his execution, which is allowed in that state. Oklahoma allows the use of a firing squad if other execution methods are blocked.
The Nebraska Corrections Department has the authority to change the lethal injection protocol, including the drug or drugs used, but such a change would take several months, require a public hearing and likely prompt legal challenges.
This spring, a majority of state senators appeared to support the repeal of capital punishment, but lawmakers lacked the votes to halt a filibuster. Action on the measure could resume in the 2014 session.
Ashford, chairman of the Legislature's Judiciary Committee, said he hopes the repeal bill comes to a vote.