"Portion of Nebraska's supply of lethal injection drug set to expire," is the Lincoln Journal Star report by Kevin O'Hanlon.
As a federal appeals court considers whether Nebraska and other states must surrender their foreign-made supplies of a lethal injection drug that is becoming increasingly difficult to obtain, part of Nebraska's supply is set to expire.
Nebraska has two batches of sodium thiopental, one of which expires in May and the other in December. It's highly unlikely the state will be able to replace the drug if the appeals court orders its surrender.
"No state has used sodium thiopental for two years," said Richard Dieter, executive director of the Death Penalty Information Center. "Because of a stoppage by the manufacturer, the U.S. supply has reportedly dried up, and existing supplies are almost all expired. A federal court has banned its importation from overseas without FDA approval, and that is not happening."
A three-judge panel of the U.S. Court of Appeals District of Columbia Circuit recently heard arguments in a case stemming from a ruling last year by U.S. District Judge Richard Leon, who said the U.S. Food and Drug Administration must notify immediately state prison officials in possession of any foreign-manufactured sodium thiopental that using such drugs is against the law and the drugs must be returned to the FDA.
Nebraska and several other states in which the drug is part of the execution protocol were forced to buy it overseas when the last U.S. manufacturer quit making it in 2010 because of death penalty opposition from overseas customers. Nebraska's sodium thiopental was made by a Swiss company and came in two batches.
Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who say the foreign-made sodium thiopental is an unapproved drug. But FDA lawyers point to a 1985 U.S. Supreme Court ruling in the case Heckler v. Chaney that said the FDA's decision to not take enforcement action in a lethal injection drug case was not subject to judicial review.
Nebraska's execution protocol could be changed, but not without considerable effort. It was formulated by prison officials and vetted through a series of public hearings. The final rules were reviewed by the attorney general and approved by the governor.