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.