LINCOLN — Nebraska prison officials have not replaced a lethal injection drug that expired late last year, meaning the state currently has no way to carry out an execution.
A prison spokeswoman confirmed Tuesday that the state has yet to obtain a new supply of sodium thiopental, one of three drugs needed for lethal injection in Nebraska.
Questions about the drug came up Tuesday during oral arguments on a death penalty appeal by former cult leader Michael W. Ryan.
Nebraska Supreme Court Judge William Connolly asked if the state has a legal source of sodium thiopental. Assistant Attorney General James Smith said he did not know because he had not checked on the status of the drug before the hearing.
The administrative code that governs the execution protocol says expired lethal substances must be cleared from inventory and replaced by the State Department of Correctional Services.
Thiopental, which renders an inmate unconscious, has become difficult to obtain because it is no longer manufactured domestically and legal questions surround its importation. It's possible Nebraska that could obtain a new supply from another state that no longer uses the drug for executions, or it could be made by a domestic pharmaceutical compounding laboratory.
When asked if the Corrections Department was planning to propose a change to the lethal injection protocol, Dawn-Renee Smith, the department's spokeswoman, said officials were looking at all aspects of the execution process.
“I don't have anything definitive on that at this time,” she said by email.
Attorney General Jon Bruning has said the state needs to move to a less specific drug protocol to provide the flexibility to carry out an execution. He also said several weeks ago that the Corrections Department can change the protocol administratively.
Gov. Dave Heineman said last month that corrections officials were working on the issue.
In the meantime, the use of foreign thiopental for executions remains an unsettled issue nationally. A federal appeals court ruled last summer that the U.S. Food and Drug Administration violated its own policies when it allowed thiopental to be imported without inspection. Although that ruling originated in another state, it involves issues similar to those brought up by Ryan.
Nebraska has not carried out an execution since 1997, when the state's method was electrocution. Tuesday's oral arguments involved a 65-year-old inmate who has spent the past 28 years on death row.
Ryan led about two dozen members of a survivalist religious cult on a farm near Rulo, Neb. He was sentenced to death for first-degree murder for ordering the 1985 torture and killing of James Thimm, 25, one of his followers. He also pleaded no contest to second-degree murder in the killing of 5-year-old Luke Stice, the son of another cult member.
Robert Kortus, an attorney for Ryan, argued that a lower court improperly dismissed a motion for post-conviction relief in 2012. Kortus said his client should be allowed to contest how the state obtained the now-expired thiopental.
The Swiss manufacturer of the thiopental said it was stolen by a broker in India who sold it to Nebraska without authorization.
Ryan's challenge of the drug has effectively stalled his execution for nearly two years.
The Supreme Court had scheduled him to die on March 6, 2012, but two weeks before the execution, the court granted a stay.
Ryan filed the post-conviction appeal in Richardson County District Court, alleging that he was to be killed using a stolen drug. District Judge Daniel Bryan dismissed Ryan's appeal, saying a post-conviction motion can challenge a sentence of death, but not the method used to carry out the sentence.
Assistant Attorney General Smith told the high court Tuesday that Bryan made the correct ruling. If the judges reverse the lower court, they also will have to reverse decisions made in several other death penalty cases.