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.