Execution room

The Nebraska Department of Correctional Services' execution room in Lincoln, as seen from the viewing room.

LINCOLN — The American Civil Liberties Union will ask the Drug Enforcement Administration on Monday to formally investigate how Nebraska officials recently obtained four execution drugs.

In a letter to the federal agency, an ACLU lawyer contends that Nebraska prison officials may have misled authorities by indicating that the drugs were intended for medical purposes rather than carrying out lethal injections. In addition, the lawyer says it appears that state officials broke the law by going overseas to obtain the powerful opioid fentanyl.

“If the Nebraska State Penitentiary imported the fentanyl, it violated federal law by importing a Schedule II controlled substance without DEA registration to do so,” Amy Miller, legal director of ACLU of Nebraska, wrote in her letter to DEA officials in Virginia and Missouri.

Asked about the letter during a Monday morning press conference, Gov. Pete Ricketts said: “The ACLU is fabricating charges in a desperate attempt to foil the will of the people of Nebraska.”

The Nebraska Department of Correctional Services purchased all of the drugs legally in the United States, Dawn-Renee Smith, the department’s spokeswoman, said Monday in an email. She has previously said the department paid $10,500 for the drugs

“The ACLU’s letter … contains inflammatory language clearly intended to discredit the department,” she said, concluding the one-paragraph response.

The letter represents the latest effort by the ACLU to thwart Nebraska’s attempts to revive the death penalty after a 21-year hiatus. Recently, the organization unsuccessfully sued over legal questions surrounding the 2016 voter referendum that reinstated capital punishment.

Nebraska authorities have been tight-lipped about how they acquired four drugs late last year for the planned executions of death row inmates Jose Sandoval and Carey Dean Moore. Officials have refused public records requests seeking the identity of their supplier. 

If a DEA inquiry should reveal violations of federal law, Miller said the drug licenses held by the Nebraska Department of Corrections should be revoked and the lethal substances seized.

The DEA has seized death penalty drugs from other states in the past. In 2012, the Food and Drug Administration ordered Nebraska officials to return a sedative it bought for lethal injection because of questions about its origin.

In 2015, then-U.S. Attorney Deb Gilg said Nebraska’s efforts to import lethal injection drugs it had purchased from a broker in India were illegal. On the same day of Gilg’s statement, Ricketts put a halt to those efforts.

The U.S. Supreme Court has consistently held that the death penalty is constitutional and that states with capital punishment must have a way to carry it out. But appropriate drugs have become increasingly difficult to obtain, which is why many death penalty states have resorted to clandestine approaches.

Yet some of the questions raised by the ACLU letter could be answered if prison officials opted to release information sought by news media outlets, information they have released in the past.

The Omaha World-Herald and the Lincoln Journal Star have filed legal challenges arguing that the department’s refusal to release the sourcing documents violates the Nebraska Public Records Act. The ACLU has filed a similar lawsuit.

A lawyer in the Attorney General’s Office has said the requested records could identify a member of the state’s execution team, which, by law, must be kept confidential. A trial on the matter is pending.

According to Monday’s 11-page ACLU letter, the Corrections Department holds two DEA controlled substance permits for the State Penitentiary, which also is where the execution chamber is situated. One federal permit allows the prison to import certain categories of controlled substances, and the other allows the penitentiary’s clinic and skilled nursing facility to dispense certain prescription drugs.

The ACLU said the DEA permit for the clinic allows a health care professional to administer drugs to patients.

“Prisoners who are to be executed by lethal injection are not being diagnosed or treated, nor are they being provided any other form of medical care,” Miller said in the letter.

The other DEA permit allows the prison to import controlled substances that are classified as Schedule III and IV drugs. But fentanyl, a highly addictive and lethal opioid, is classified as a Schedule II drug.

Moreover, in its applications to the DEA, the Corrections Department said the penitentiary holds a state license as a community pharmacy, making it eligible for DEA registration. But the pharmacy associated with the prison is four miles away and operates under a separate state license, the ACLU letter said.

Corrections officials may have used the pharmacy “as a ruse to lure the DEA into issuing an importer’s registration,” Miller said in the letter.

World-Herald staff writer Barbara Soderlin contributed to this report. 

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