LINCOLN — Nebraska needs a new lethal injection protocol to keep the death penalty viable, Attorney General Jon Bruning said Friday.
The state's supply of sodium thiopental, one of three drugs currently required for lethal injection in Nebraska, expires in December. The drug is no longer made domestically, and it has become the target of successful legal challenges.
The solution, Bruning said, is to change the state's lethal injection protocol. While such a change could be done legislatively, it could also be accomplished by amending regulations within the state Department of Correctional Services.
“My goal is to ensure the death penalty is carried out,” Bruning said. “It's very frustrating to me that the constant litigation over the drug used to carry out these sentences has produced constant delays.”
Nebraska has not carried out an execution since 1997, when the method was the electric chair. The state switched to lethal injection in 2009 after the Nebraska Supreme Court declared electrocution cruel and unusual punishment.
None of the 11 men on death row currently have an execution date, although several are nearing the end of their appeals.
Death penalty opponents have argued Nebraska could end lawsuits and save legal costs by abolishing capital punishment in favor of life in prison without parole.
“I'm concerned with the victims and I'm concerned with their families,” Bruning said as he rejected that argument.
Nebraska's current execution protocol requires the injection of sodium thiopental as an anesthetic followed by two other drugs that paralyze and stop the heart. Bruning advocated creating a more general protocol that would give the Corrections Department broader authority to select drugs for lethal injection.
Gov. Dave Heineman, a supporter of capital punishment, could direct the Corrections Department to change the protocol. Heineman declined to comment on the issue Friday.
The department would be required to hold a public hearing on a proposed change to the protocol. Such a change could prompt a new set of legal challenges.
An attorney for Michael Ryan, sentenced to death in 1986 for the gruesome torture and murder of James Thimm near Rulo, Neb., filed a court brief this week asking the state to review how the Corrections Department obtained its current supply of sodium thiopental. The Swiss manufacturer of the drug said it was stolen by a broker in India.
In July, a federal appeals court ruled the U.S. Food and Drug Administration violated its own policies by failing to approve the import of sodium thiopental to corrections departments in Arizona, California and Tennessee. The ruling was viewed as yet another avenue that could be pursued by opponents of capital punishment in Nebraska.
A broader protocol would give corrections officials the ability to avoid drugs dogged by legal challenges, Bruning said. He criticized death penalty opponents for shifting attention away from the criminal acts that led to death sentences being handed down.
“It's very frustrating to talk about an anesthetic being used on the men on death row,” he said. “I have very little concern about the moment of pain Michael Ryan might feel before he meets his maker.”
During the last legislative session, 28 state senators voted to end a filibuster on a death penalty repeal bill. Although it wasn't enough votes to stop the filibuster, it indicated there may have been the 25 votes necessary to advance the bill.