Nebraska execution protocol nears approval with confidentiality change

Nebraska's death chamber

The Nebraska Department of Correctional Services apparently will strike a paragraph from its proposed execution protocol that would authorize the supplier of lethal injection drugs to remain confidential.

The department has reviewed testimony from a Dec. 30 public hearing on execution protocol, proposed at least one change and forwarded its proposed protocol to Attorney General Doug Peterson. Now, it's in the hands of Gov. Pete Ricketts' Policy Research Office.

The protocol was revised shortly after Nebraskans voted in November to continue using the death penalty. That vote came after the Legislature voted to repeal it and substitute life in prison for first-degree murder convictions.

The newly revised protocol would allow the Corrections Department to use available drugs for lethal injection of condemned inmates and would have kept the source of those drugs confidential. It would give only the inmate information on what drug(s) would be used and in what quantity 60 days before a request for a death warrant.

That use of appropriate available drugs was substituted for a 3-drug combination of sodium thiopental to render the inmate unconscious, pancuronium bromide to stop breathing and potassium chloride to stop the heart.

The department issued an explanatory statement Jan. 12, summarizing testimony given during the Dec. 30 public hearing and responding to issues and questions raised there.

Testimony -- the majority of it expressing concerns about the proposed protocol -- came from pharmacists, Omaha Sen. Ernie Chambers, a representative of the media, physicians, pastors, members of the public and ACLU of Nebraska. In addition, 25 letters and documents were submitted.

Many of the concerns were about secrecy in the revised protocol and use of pharmacy personnel in the process.

The department responded this way.

* Because of opposition to keeping the source of execution drugs confidential -- opponents cited a violation of Nebraska's public records laws and lack of transparency -- the Corrections Department said it will strike this paragraph: "... the director may authorize any records or information identifying a person, company, or entity supplying the substance or substances to be employed in an execution by lethal injection to be confidential."

* In response to concern about using unknown drugs in unknown doses, the department said the protocol does not do that. While the drugs are not specifically named in the protocol, the inmate will be notified of the drug(s), the quantity and the order they will be administered at least 60 days prior to the request for an execution warrant, the department said.

* The Corrections director, not the Legislature, is responsible by law for selecting the drugs and quantities to be used, and that will not change.

* As far as the concern that pharmacists involved in any way in the execution would be violating their code of ethics, the department cited state law saying a pharmacist or other person licensed by a board or department is exempted from disciplinary action.

* State law exempts the lethal injection process from the Pharmacy Practice Act, so references to pharmaceutical chemists can be used in the protocol, the department said. Pharmacists had objected because the practice act says only pharmacists, pharmacist interns and technicians may compound drugs. Also, pharmacists can provide the drugs without a medical order from a prescriber because of the exemption. * No fiscal impact is anticipated beyond what exists in the current rule.

* The department proposes to retain provisions that would allow a county coroner to determine whether an inmate is dead.

Corrections Director Scott Frakes said on Jan. 11 his department was working diligently to review all testimony, and that he would take the time necessary to make sure the review was done correctly.

He turned it over to Attorney General Peterson the next day.

Corrections spokeswoman Dawn-Renee Smith said the department's chief attorney spent considerable time drafting the hearing summary and the responses, and that by the close of business on Jan. 11, Frakes had received and reviewed the summary of testimony and the responses to each issue.

"The testimony was, in fact, carefully considered, which will be reflected in the final rule," Smith said.

Source: Lincoln Journal Star, January 25, 2017

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