LINCOLN — Carey Dean Moore could be the first, and last, death row inmate executed by lethal injection in Nebraska.
Nebraska’s top prison official said in a court affidavit Thursday that he has no way to restock the supply of lethal injection drugs currently in the state’s inventory, including vials of potassium chloride manufactured by a German company that has sued to prevent its product from being used to kill. And the disputed drug expires Aug. 31.
So if a federal judge halts the Tuesday execution to sort out the legal issues, it’s likely the state loses the opportunity to carry out a death sentence imposed 38 years ago.
“Put simply, the window will close on August 31, 2018. Possibly for good,” Assistant Attorney General Ryan Post stated in a legal brief filed Thursday for the state.
Senior U.S. District Judge Richard Kopf plans to rule at a 3 p.m. hearing Friday on the drug company’s motion for a temporary restraining order. His decision will be watched closely not only by Nebraska, but also by lawyers and those on both sides of the divisive issue in the 30 other death penalty states.
Drug manufacturer Fresenius Kabi says in its lawsuit that Nebraska improperly or illegally bought a drug produced to save lives, not take them. The company argues that it has a right to prevent the drug from being misused in a way that could result in serious financial damages and loss of business reputation, especially in European markets where opposition to capital punishment is strong.
The state’s attorneys say prison officials obtained the drugs legally and ethically from a licensed domestic pharmacy, whose identity they have shielded from public disclosure. The lawyers say the state has the right to use their drug to carry out a legal and constitutional death sentence.
“It’s a property dispute that has life or death consequences,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C.
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Moore, who has spent 38 years on death row, says he’s ready to die in a lethal injection scheduled for 10 a.m. Tuesday. He has not participated in the drug lawsuit or other recent legal challenges to prevent his execution.
One of the longest serving death row inmates in the nation, Moore, 60, was sentenced to death for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.
Nebraska plans to use an untried four-drug combination of diazepam, fentanyl, cisatracurium and potassium chloride to conduct what would be the state’s first lethal injection execution. Fresenius Kabi, which also operates out of headquarters in Lake Zurich, Illinois, suspects that the state’s cisatracurium was made in the company’s factories.
Scott Frakes, director of the Nebraska Department of Correctional Services, said he found the pharmacy the state used after contacting at least 40 suppliers and six states in an unsuccessful search for drugs.
States have carried out 15 executions so far this year, according to the Death Penalty Information Center. The most recent took place Thursday night in Tennessee, using a three-drug combination different from the one that Nebraska intends to use.
Even though other death penalty states have been able to obtain lethal injection drugs, Frakes said he has found them practically impossible to purchase.
“That supplier is unwilling to provide additional substances,” Frakes stated. “I do not, at present nor at any time in the future, have an alternative supplier for any of the four substances to be administered for execution by lethal injection.”
The state’s attorney called the drug company’s claim of potential financial losses speculative. But he argued that the loss to the state is tangible, considering 61 percent of Nebraska voters reversed a repeal of capital punishment in 2016.
“The people of Nebraska have chosen by a wide margin to retain capital punishment for Moore’s crimes,” the attorney stated in his brief. “Their government is prepared to carry out Moore’s sentence.”