Nebraska Supreme Court Orders Release of Lethal-Injection Drug Records

In a major victory for media outlets and prisoner advocates, the Nebraska Supreme Court has ordered the state’s Department of Correctional Services (DCS) to release public records related to the procurement of drugs used in the 2018 execution of Carey Dean Moore (pictured). The court rejected the state’s argument that drug suppliers and manufacturers are members of the execution team whose identities may be shielded from disclosure but permitted DCS to redact information that could identify corrections personnel who carried out the execution.

The court’s 7-0 decision, issued May 15, 2020, came in an appeal of orders entered by a lower court in a series of open-records lawsuits filed by two leading Nebraska newspapers and the ACLU of Nebraska. The Omaha World-Herald, Lincoln Journal Star, and the state chapter of the ACLU had each separately sued DCS after the department denied requests for lethal-injection records submitted by the organizations in 2017. On June 18, 2018, two months before Moore’s scheduled execution, a Nebraska district court ordered DCS to turn over the records. The state appealed that decision to Nebraska’s high court, and as a result, the documents remained secret at the time of Moore’s execution.

Representatives of the newspapers and the ACLU applauded the decision as a victory for government transparency.

In an editorial published on May 19, the Omaha World-Herald called government transparency “vital” and wrote, “The Nebraska Supreme Court last week upheld a key principle: Government should operate in the open, to ensure accountability to the people.” The World-Herald’s managing editor, Paul Goodsell, said the court’s decision “makes clear that officials can’t sidestep their disclosure obligations.”

Dave Bundy, editor of the Lincoln Journal Star, said “[s]hedding light on government — sometimes forcing that light to be shed — is one of the key functions of the press.” The court’s action, he said, “is important both for the gravity of the death penalty, but also it’s an important assertion of the public’s right to know how that penalty is carried out.”

Nebraska ACLU director Danielle Conrad called “[o]pen, transparent government … a bedrock Nebraska tradition … deeply valued by citizens across the political spectrum because it provides a check on the abuses of big government.” She expressed pleasure that “the court agreed that Nebraskans have a right to know what the state is doing with taxpayer dollars and will finally bring transparency to this suspect process.”

In 2011, Nebraska purchased sodium thiopental from a supplier in India named Harris Pharma. Harris had obtained the drugs without charge from the Swiss-based pharmaceutical manufacturer Naari, telling the company that he was sending the drug to Africa for humanitarian purposes. Naari sued Nebraska after learning that its product had been purchased for use in executions. Four years later, while the state legislature was debating the repeal of the state’s death-penalty statute, DCS purchased 1000 more vials of sodium thiopental from Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Nebraska paid $54,400 for the drugs but, citing a lack of clearance from the Food and Drug Administration, FedEx refused to bring the drugs into the country. Harris Pharma did not refund the payment Nebraska had made for the drugs.

In August 2018, the German-based pharmaceutical company Fresenius Kabi sued Nebraska alleging that the state intended to use drugs manufactured by the company in the execution of Carey Dean Moore. The company alleged that Nebraska had obtained those drugs “through improper or illegal means,” in violation of the Fresenius Kabi’s distribution contracts, and unsuccessfully sought to have its drugs returned.

The public-records lawsuits filed by the newspapers and the ACLU requested that DCS produce numerous records documenting the state’s process for buying the execution drugs and identifying the supplier from which it was purchased. The Nebraska court’s order requires DCS to turn over purchase orders, chemical analysis reports, communications with the drug supplier, federal Drug Enforcement Administration forms, invoices, inventory logs, and a photograph of the packaging in which the drugs arrived. The decision sends the case back to a lower court, stating, “On remand, the district court must order [DCS director Scott] Frakes to produce nonexempt portions of the purchase orders and chemical analysis reports after portions that may be withheld have been redacted, such as an execution team member’s name, title, home or work address, telephone number, or email address.”

State officials said the process may take four months, depending on whether the state seeks a rehearing, and how quickly the lower court acts.

Carey Dean Moore’s execution was the first, and thus far only, in the country to use a four-drug protocol of diazepam (the sedative Valium), fentanyl citrate (an opioid painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop the heart. In addition to the dispute over the execution drugs. Moore’s execution also became the subject of controversy because a curtain was dropped, blocking witnesses from viewing significant portions of the execution.