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.