Let’s peel back the layers of lawlessness. Ricketts argues that the legislature cannot reduce a criminal sentence imposed by a court. Under Article IV Section 13 of the constitution, he’s probably right about the sentences. But by law, an execution also requires a death warrant, and in Nebraska only the state supreme court can issue one. The attorney general, Doug Peterson, can petition the court to set new execution dates, but it’s unlikely to do so before the law goes into effect in September.
There’s a second level: After it takes effect, LB268 doesn’t suspend lethal injection, as a court decision might; it repeals every provision that allows executions of any kind. After September, those condemned prisoners may still be formally under sentence of death; but no court will have jurisdiction to issue a death warrant, and no official will have authority to carry one out. What will Ricketts do then?
Layer three is the bootleg sodium thiopental. Ricketts says the state has ordered and paid for (but not yet received) this drug, part of the standard three-drug “cocktail” used since the 1980s for lethal injection, from a distributor named Harris Pharma, run by Chris Harris. The state bought some thiopental through Harris Pharma once before. The federal Drug Enforcement Administration seized that shipment because the company isn’t approved to sell it. (Harris had gotten it from a Swiss company by lying about what he was going to do with it.) Now the Food and Drug Administration is under a 2013 order from the D.C. Circuit to seize all sodium thiopental coming into the United States from unregistered dealers like Harris Pharma.
So what? Nebraska isn’t bound by the D.C. Circuit decision, Peterson told a newspaper; the state wasn’t a party to the case. True enough: The order binds the FDA, not the government of any state. But Eric Shumsky, who argued the D.C. Circuit case, told me that, under the court’s order, the FDA is required to seize any shipment at the border. There’s no way for Nebraska to get its drug supply—“unless they plan to smuggle it in in someone’s backpack,” he said.
The governor’s office did not return a call. Asked about the prisoners already on death row, Suzanne Gage, Peterson’s director of communications, said that “it is our intent to pursue a court determination as to their status and the ramifications of LB268 on the state’s ability to carry out the death penalty.”
The confusion in Nebraska—a cross between comic opera and banana-republic politics— follows closely on a surreal lethal-injection argument at the United States Supreme Court on April 29. The three petitioners in Glossip v. Gross have been on death row for between ten and 35 years. They did not ask the court to find them innocent; they don’t challenge the state’s constitutional power to put them to death; they ask only that the state not use untested drugs to kill them—drugs that, some evidence shows, may make their deaths as painful as being burned alive.**