Nebraska abolishes death penalty

Nebraska is not a liberal state. By no means.

Though the legislature is officially non-partisan, nearly two-thirds of its members identify as Republicans. Governor Pete Ricketts is also a Republican. Nebraskans voted overwhelmingly for Mitt Romney and John McCain in the last two presidential elections.

Based on this conservative political profile, one would expect Nebraska to side with the 31 US states that still have capital punishment. After all, 70 percent of Republicans nationwide support the death penalty, according to a 2013 survey conducted by the Pew Research Center.

But many Nebraskan conservatives defied their party's conventional wisdom and voted to abolish the state's death penalty last week. Eighteen Republicans together with 13 Democrats and an independent replaced death by lethal injection with life in prison without the possibility of parole.

On Wednesday, most of those Republicans held their ground, defying their own governor and delivering the votes needed to override his veto.

"It's been a gradual shift in Nebraska and across the country, among people on the conservative side of the spectrum starting to re-think capital punishment," Matt Maly, coordinator of Nebraska Conservatives Concerned About the Death Penalty, told DW.

Maly, who comes from an evangelical Christian background, is pro-life and opposes the death penalty for moral reasons. But he said many fiscal conservatives, who champion the virtues of limited government, increasingly view the death penalty as another example of a state program run amok.

Problems with drug cocktail

Other conservatives supported abolition for pragmatic instead of philosophical reasons, arguing that capital punishment has already fallen out of use in practice, while litigation continues to run up costs.

"I don't think we're going to put anybody to death in this state again," Senator Mike Gloor concluded after examining the legal challenges and capital punishment's history in the state.

Nebraska currently has 10 inmates on death row. But the state has not carried out an execution since 1997. That's because Nebraska was the last US state to rely solely on the electric chair, making its death penalty the target of legal challenges. Ultimately, the state Supreme Court ruled in 2008 that death by electric chair was unconstitutional because it constituted a form of cruel and unusual punishment.

A year later, the state legislature replaced the electric chair with lethal injection, opting for a three-drug protocol of sodium thiopental, pancuronium bromide and potassium chloride. Nebraska was the last state to adopt lethal injection.

But the Nebraska Department of Correctional Services (NDCS) has faced trouble buying thiopental. The sole US manufacturer, Hospira, objected to the use of thiopental for executions and ceased manufacturing the drug at a plant in Italy. European pharmaceutical companies are prohibited by law from exporting thiopental for use in executions.

"So now there's no manufacturer anywhere in the world that will sell to correctional facilities," Jim Mowbray, chief counsel at the Nebraska Commission on Public Advocacy, told DW. The commission represents death row inmates who don't have access to an attorney.

'Shady foreign source'

Unable to procure the drugs from the major manufacturers, Nebraska turned to more exotic sources, ordering sodium thiopental from a man named Chris Harris in 2011. Harris was affiliated with an Indian company by the name of Kayem Pharma, according to documents obtained by the Nebraska American Civil Liberties Union (ACLU).

But the state didn't have the necessary import license, and US authorities ultimately ordered the illegally imported drugs destroyed.

Harris subsequently found a new source of 500 vials, charging the state of Nebraska $5,411. But the Swiss company that manufactured those vials, Naari Pharma, filed a lawsuit in Nebraska to recover the drugs, objecting to their use in executions. The company's CEO, Prithi Kochhar, said he was duped by Harris, who fraudulently claimed that the thiopental was intended for medical purposes.

"It's a sketchy or shady foreign source that has had difficulty complying with state and federal laws," Danielle Conrad, executive director with the Nebraska ACLU, told DW.

The US Food and Drug Administration also failed to examine the content of the drugs, resulting in additional litigation. Meanwhile, the vials of thiopental sat unused until they passed their expiration date in 2013 and had to be destroyed.

Attempt to revive death penalty

The week before the vote to abolish capital punishment, Governor Ricketts announced that he'd solved the lethal drug shortage which was preventing executions from moving forward.

Ricketts claimed to have purchased 1,000 units each of sodium thiopental and pancuronium bromide from a company called HarrisPharma at a cost $54,400. The company is owned by the same Chris Harris who had tried to sell Nebraska the drugs before.

The continued involvement of Harris raised concerns about whether the drugs complied with US regulatory standards and could be reliably applied without causing excruciating pain. A spokesperson for the governor said the drugs would be tested by a third party to ensure their purity, according to the Omaha World-Herald newspaper.

But the governor's attempt to revive the state's withering death penalty, by purchasing the drugs and vetoing abolition, ultimately failed. Enough conservatives, both in the legislature and at the grassroots level, were not persuaded by Ricketts' argument that abolishing capital punishment would jeopardize public safety. They were more concerned by the waste, inefficiency and potential for abuse and error.

"The government often sentences innocent people to death," said Maly, coordinator of Conservatives Concerned About the Death Penalty. "I don't trust the government to deliver my mail - so why should I trust them with life and death decisions?"

In a Kafkaesque twist, the law abolishing the death penalty in Nebraska is not retroactive. That means the 10 inmates still on death row will remain there. But with a method of execution no longer on the books, their lives will be spared.