In ​‘Netherworld’ Between Law and Reality, Nebraska Prosecutors Continue Pursuit of Death Penalty

The legislature doesn’t want capital punishment, the executive branch can’t obtain execution drugs, and Nebraska prosecutors have moved forward this year with the pandemic-delayed capital sentencing trials of two defendants separately convicted of a murder out of a voyeuristic true-crime novel. The state, writes Associated Press reporter Grant Schulte in a May 9, 2021 analysis, is “still wedded to the idea of executing prisoners, just not the practical part of doing it” and appears “caught in a law vs. reality netherworld.”

Three defendants have been sentenced to death in Nebraska since Governor Pete Ricketts bankrolled a 2016 voter referendum that prevented the legislature’s repeal of the state’s death penalty the year before from going into effect. Two more — Aubrey Trail (pictured) and Bailey Boswell —face imminent sentencing decisions by three-judge panels in the murder and dismemberment of Sydney Loofe in what Trail has claimed was her accidental death during a group sexual fantasy involving asphyxiation.

Trail had a one-day penalty phase trial in March. The parties have submitted written closing arguments to the court and are awaiting the sentencing verdict. Boswell’s penalty phase is expected to begin before a separate three-judge panel in late June. But, Schulte writes, “the lawyers, judges and prison officials who oversee Nebraska’s system of capital punishment largely ignore the fact that the state has no lethal injection drugs and very likely won’t get any for years, if ever.”

Douglas County Attorney Don Kleine, who has obtained four of the five death sentences imposed in the state over the past 15 years, downplayed the contribution of prosecutors to the state’s current dilemma. “Once we get done with the trial and sentencing, it’s kind of off our shoulders,” Kleine told Associated Press. “Certainly, it seems to be the case right now that the state doesn’t have the wherewithal to carry it out.”

Nebraska’s Execution Standstill

The state is at a standstill over the execution process. In 2018, Nebraska executed Carey Dean Moore, who gave up his appeal rights, using drugs secretly obtained in violation of pharmaceutical manufacturers’ distribution policies. Two months before Moore’s execution, in response to open records lawsuits filed by the Omaha World-Herald, the Lincoln Journal Star, and the Nebraska chapter of the ACLU, a Nebraska trial court ordered the Nebraska Department of Correctional Services to disclose records related to its drug purchase. However, the state appealed the decision, stalling release of the documents until May 2020, when the Nebraska Supreme Court unanimously ordered NDCS to disclose the records.

Shortly before Moore’s execution, drug manufacturer Fresenius Kabi sued Nebraska in federal court alleging that the state had obtained the company’s drugs “through improper or illegal means.” After learning that their drugs also were being used in the execution, Hikma Pharmaceuticals USA and Pfizer Inc. demanded that NDCS return their drugs. The state refused. Community Pharmacy Services, a local pharmacy that sold the drugs to the corrections department under an invoice labeled “[m]iscellaneous expense,” said when the records from the sale were released that “Community Pharmacy Services has never supplied drugs since then to the Nebraska Department of Corrections or any other department of corrections, nor will it ever again.”

Nebraska corrections director Scott Frakes has urged the legislature to pass legislation permitting the state to conceal the identity of its drug suppliers from the public, asserting that without secrecy NDCS would not be able to obtain execution drugs. The legislature has refused, instead passing a bill in August 2020 calling for more transparency in the execution process. Governor Ricketts vetoed that bill.

Why Drugs are Not Available for Lethal Injection

The continuing unavailability of pharmaceuticals for use in execution has frustrated death penalty proponents, who have repeatedly advanced, without evidence, the conspiracy theory that anti-death penalty activists have intimidated and harassed drug companies into refusing to sell their drugs. Most famously, during oral argument in Glossip v. Gross Supreme Court Justice Samuel Alito accused anti-death penalty activists of mounting “what amounts to a guerilla war against the death penalty.” A recent article by University of Nebraska College of Law Professor Eric Berger (pictured, right) in the William & Mary Law Review debunks that narrative as “woefully incomplete” and paints a much more nuanced picture of the opposition to lethal injection.

In Courts, Culture, and the Lethal Injection Stalemate, Berger notes that states are continuing to have difficulty carrying out lethal-injection executions despite a trilogy of U.S. Supreme Court cases denying legal challenges to the practice. “It turns out that courts saying ‘yes’ to executions does not much matter when so many other [key actors] say ‘no,’” Berger writes.

A number of unrelated interests with “a great variety of … motives and goals” have converged to impede state efforts to execute prisoners by lethal injection, Berger says. However, he writes, “[c]ontrary to the Court’s assertions, anti-death penalty ‘activists’ are hardly the only or even primary culprit behind states’ lethal injection difficulties. Nor are European governments. To the contrary, many different institutions and people contribute to states’ problems.”

Those whose opposition to lethal injection have played a part in the execution stalemate include “[p]harmaceutical corporations, institutional investors, doctors, nurses, medical associations, capital lawyers, foreign governments, federal drug regulators, reporters, academics, and others,” Berger says, “including, yes, abolitionist activists.” While “some of these actors share a general aversion to the death penalty,” he writes, “few of them are conspiring with the purpose of halting executions. To the contrary, each group has its own distinct motivations and goals, and they rarely coordinate with each other.”

The human rights policies of European governments morally oppose the death penalty, and the European Union has adopted export controls that prohibit the sale of products, including medicines, for use in torture or executions. In 2017, the EU joined with other nations including Argentina and Mongolia to create the Alliance for Torture-Free Trade in an effort “to make it significantly more difficult to obtain products intended for carrying out the death penalty.”

Europe is home to many pharmaceutical companies whose subsidiaries produce and distribute drugs in the United States and that follow the European human rights ethic against capital punishment. But U.S. pharmaceutical companies, Berger explains, also universally oppose selling their medicines for use in executions based on their own corporate values. The companies, he writes, “are committed to saving lives through their medicine” and “recognize that providing death penalty drugs is in sharp tension with their healing mission.” Their marketing wings also fear the damage to the profitability of the products themselves if they become known as drugs used for killing rather than healing. The companies also are reluctant to subject themselves to “the bad public relations that would come with selling drugs for use in executions,” Berger says. For similar reasons, institutional investors have objected that “[a] company in the business of healing people … put[s] its reputation at risk when it supplies drugs for executions” and further risks associating itself with botched executions.

Berger notes that many of the alternative suppliers of execution drugs in the United States — compounding pharmacies — also “share major pharmaceutical corporations’ opposition to the use of their products in executions.” Major professional associations including the International Academy of Compounding Pharmacies and the American Pharmacists Association have adopted policies discouraging pharmacy involvement “in the preparation, dispensing, or distribution of compounded medications for use in legally authorized executions.” Likewise, numerous medical professionals, bound by the Hippocratic Oath to do no harm, refuse to participate in executions.

Berger also points to the responsibility of federal agencies — such as the Food and Drug Administration and the Drug Enforcement Agency — to regulate the quality of drugs distributed throughout the United States and to protect the integrity of the medical supply chain as affecting state diversion of therapeutic medicines for use in lethal injection. Thus, while advocacy work by death-penalty abolition groups, such as the London-based human rights organization Reprieve, has played an important role in persuading companies and governments to withdraw healing medicines from the execution marketplace, the attempt to medicalize the execution process faces numerous other substantial roadblocks.

Another factor contributing to the decline in lethal-injection executions is the tepid and declining support for the death penalty at the state level. Conservative death-penalty opponent Matt Maly told Associated Press that many Nebraskans who still support capital punishment are not deeply invested in the issue. Given the softness of public support, he and Berger suggest, politicians in death-penalty states simply cite the shortage of execution drugs as a reason not to carry out a policy about which they have little enthusiasm.