Nebraska To Use Fentanyl For Execution (Update: 8th Circuit Decision)

Nebraska hasn’t executed anyone in 21 years, but the people of Nebraska are jonesing for a kill and Carey Dean Moore* looks to be the one to do it. Unlike the fiasco in Tennessee with Billy Ray Irick’s torture by midazolam, Nebraska will use the dreaded opioid, fentanyl.

A federal judge on Friday rejected a drug company’s request to block Nebraska from using what the company believes are its products in an execution next week, clearing the way for the state to carry out its first lethal injection and the country’s first execution using the powerful opioid fentanyl.

The German drug company, Fresenius Kabi, contends that it must have manufactured the fentanyl Nebraska intends to use, and that Nebraska must possess it unlawfully since it refuses to sell the drug for the purpose of executions and includes restrictions on the use of its drug when it’s sold. It doesn’t want the drug it manufactures to be used for that purpose. It doesn’t want to be known as the company that provides drugs to kill. 

Senior District Court Judge Richard G. Kopf rejected the argument.

On Friday, Richard G. Kopf, senior U.S. district judge, rebuffed the drug company’s request to block Nebraska officials from using the drugs in question. Kopf said in an order that there was no evidence that the cisatracurium Nebraska will use was manufactured or distributed by the company, nor did he think the company would face any blame or that its reputation would be harmed if it was associated with the execution.

Kopf, who called it “a very strange suit,” noted that lawmakers in Nebraska “decided to kill the death penalty, and after that, and very recently, the people decided to resurrect it.” As such, he explained, the public interest sided with the state officials seeking to carry out Moore’s death sentence.

The Nebraska legislature eliminated the death penalty, overriding the veto of Gov. Pete Ricketts. A public referendum then restored the death penalty. Regardless of the arguments for or against the death penalty, and oddly Fresenius Kabi took no position as to executions, Nebraskans, like Californians, made it clear that they favor the death penalty. The company’s only beef was that they didn’t want to be “known” as the fentanyl supplier, an odd position indeed as no one would have had given them a thought had they not proclaimed their belief they were the provider.

But as the plaintiff in the suit, the burden of proving that the fentanyl to be used was their product, as opposed to something picked up from a dealer in a back alley, cooked up in shack on the outskirts of Lincoln. They couldn’t do so.  The director of the Nebraska Department of Correctional Services, Scott Frakes, provided an affidavit stating:

  • The substances were obtained from a licensed pharmacy in the United States, and have been chemically analyzed and verified as required by [the Nebraska Administrative Code].
  • The Nebraska Department of Correctional Services did not
    obtain any of the substances in its possession by any fraud,
    deceit or misrepresentation by the Department or, to the best of the affiant’s knowledge, by any fraud, deceit or misrepresentation by any official of the State of Nebraska.
  • The Nebraska Department of Correctional Services did not engage in any measures to circumvent Fresenius Kabi’s distribution control.
  • The Nebraska Department of Correctional Services does not and did not have any contract with Fresenius Kabi.

However Nebraska swears it lawfully obtained the fentanyl, it wasn’t from Fresenius Kabi and the company has nothing to do with it. Fresenius Kabi couldn’t prove otherwise.

The battle over the drugs to be used in executions is the alternative to the battle to end executions, per se. That war was lost in Nebraska, despite the legislature’s effort to do so. The people spoke, and they said “kill.”

States that seek to execute inmates have struggled to find the drugs for lethal injections, a situation fueled by objections drug companies haveto their products being used for capital punishment. In response, states have turned to new, untested drug combinations. Nebraska and Nevada planned to use fentanyl in executions this year in an unprecedented move, while other states have explored different methods entirely. Oklahoma this year said it would use nitrogen gas for executions, while Utah made the firing squad its backup method of execution in 2015.

Supporters of capital punishment argue that opponents have forced states to pursue inferior options because of what Supreme Court Justice Samuel A. Alito Jr. once called “a guerrilla war against the death penalty.”

The problem with this tactic is reflected in the execution of Irick, where the inability to get pentobarbital, not because it was unavailable, but because the company that manufactures it refused to sell it for the purpose of executions, didn’t prevent the execution, but left Irick to be tortured by the midazolam used instead. The theory was that if states couldn’t obtain constitutionally permissible drugs, they couldn’t carry out capital punishment, as the Supreme Court would prevent a barbarous execution. It didn’t turn out that way.

If someone is to be put to death despite the myriad reasons why the death penalty should be abolished, is it better to do so in barbarous fashion or painlessly? The problem, obviously, is that while painlessly is more humane, it also enables executions to proceed and undermines a critical weapon in the “guerrilla war” against the death penalty.

But as noted by Judge Kopf, the people of Nebraska have spoken, and they said “kill.”

The public interest weighs heavily in favor of Defendants. Many people of good faith object to the death penalty. However, the electoral processes of Nebraska have worked as they were intended. The Nebraska Legislature decided to kill the death penalty, and after that, and very recently, the people decided to resurrect it. While I have no beef with corporations—German or otherwise—I cannot say with a straight face that the public interest in any way favors the Plaintiff. Sure, the Plaintiff just might, although it is very doubtful, suffer harm to its reputation. But the public interest is far broader than corporate self-interest. In this case, it has everything to do with the functioning of a democracy.

The people of Nebraska want Carey Dean Moore to die. That’s democracy in action, for better or worse. The only question remaining is how to kill him. Fentanyl will be far more humane than other drugs. Whether this is good or bad is a matter of debate, but that has no bearing on whether Fresenius Kabi sustained its burden to obtain injunctive relief to preserve its reputation as a fentanyl manufacturer who didn’t supply the drug to be used in Nebraska.

Update: Fresenius Kabi petitioned the Eighth Circuit for an expedited appeal. It’s motion was granted, and the circuit affirmed Judge Kopf’s decision.

*Moore was convicted of murdering two Omaha cabdrivers. He’s been on death row for more than 37 years.

19 thoughts on “Nebraska To Use Fentanyl For Execution (Update: 8th Circuit Decision)

  1. PseudonymousKid

    Dear Papa,

    Nebraska’s use of fentanyl is a sick advertisement to the drug’s lethal potential when the overdose rate continues to climb rapidly. Does Moore’s demise get added to the tens of thousands overdose deaths per year or not?

    The lawsuit is bizarre. It doesn’t seek damages and puts up a limp attempt to climb the mountain to injuctive relief. What is the company doing but wasting money on lawyers? The horror.


    1. Dan

      “What is the company doing but wasting money on lawyers?”

      Providing a credible “we tried to stop it” when the SJWs ostracize them for being complicit in institutionalized murder. Or something.

  2. Frank

    “Len Bias Cocaine! Len Bias Cocaine!”

    On that subject, why are they spending money on this when there has to be tons of heroin in the police evidence lockers? If you’re looking for a “humane” method of execution you can’t go far wrong with an OD of heroin, and it’s free.

    Oh, and on a completely different subject, I really liked the “you suck at math” error message the site used to have. Please bring it back.

  3. B. McLeod

    Ironically, this is a drug with which hundreds kill themselves annually in this country. Even a few A-list celebrities have managed it. Chances are, if the prison system made Fentanyl available for voluntary recreational use by death row inmates, they would all hit mortality far sooner than the end that eventually comes of a state-administered injection. So far as I can discern, opponents of this concept are hanging their hats solely on a rigid insistence that inmates should not be allowed to have any fun, even if it is fatal fun.

    1. SHG Post author

      This isn’t rocket science. Alito is right, and the purpose is to circumvent the Supreme’s restoration of the death penalty. If you’re against capital punishment, and the Court isn’t buying your 8th Amendment argument, you fight it where you can when the plunger is about to be pushed.

  4. MonitorsMost

    According to Judge Kopf’s order, it was not the Fentanyl that the plaintiff pharmaceutical company claimed it had manufactured. It was the cisatracurium besylate and potassium chloride. I don’t know who the fentanyl manufacturer was, but it is/was probably a good idea to keep a low profile.

    Don’t like the death penalty? Go win some hearts and minds. But you’re not going to stop executions by trying to withhold drugs any more than you’re going to make Donald Trump not president by withholding his Twitter.

    1. SHG Post author

      Background detail. I didn’t find the order until after the post was written from the newspaper article, but I didn’t want to ask Judge Kopf for a copy and, of course, it’s not as if WaPo would bother with such trivial details as to link the order into the article. So I added in the order and some material afterward, but I didn’t realize that it was the cisatracurium besylate and potassium chloride at issue rather than the fentanyl.

  5. DT

    It’s not about whether we have the technology to kill a defenseless human being quickly and with no possibility of pain. There are lots and lots of ways to do it, none of which even require vascular access.

    It’s about how you do it “humanely”, meaning that the convict is just as dead, but the system comforts itself with the trappings of medicine and the fantasy that the recently-deceased drifted off to sleep, never to wake again. Kinda peaceful-like.

    Never mind the hunt for an IV site, the certainty of minor pain (and the possibility of major pain when the convict has an IV drug abuse history and the IV infiltrates during the execution), and the fact that none of these medications are free of side effects as they achieve poisonous levels. That’s not important, because nobody looks at it. It doesn’t feed the peaceful and pseudo-professional image. And the executed person is at most peripheral to the whole illusion.

    To quote a poem recently featured here, “It’s about who they believe they is. You hardly even there.”

      1. Ben

        Yes, yes it was. If one is killing a man, one ought not to be squeamish about whether it hurts, provided the suffering is not gratuitous. Do it, or don’t.

        It was only one (two?) decades ago that the Supremes were arguing whether a man was too fat to be hanged because it might rip his head off.

        It is part of the tragedy of man that we want incompatible things. Justice and Mercy! Justice requires that the man suffers what his victims did. Mercy – and decency – require that he does not. Each is a deeply embedded instinct which exists for good reason, yet they are incompatible. We will be forever unsatisfied.

        “the executed person is at most peripheral to the whole illusion”
        Yes. “It’s about who they believe they is. You hardly even there”

      1. REvers

        The state officials who are sending a message to the children that using Fentanyl isn’t a bad thing. I mean, what’s next? Legal marijuana?

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