DEA says Nebraska’s purchase of lethal injection drugs was legal

DEA says Nebraska’s purchase of lethal injection drugs was legal
The Nebraska Department of Correctional Services' execution room. (World-Herald News Service)

LINCOLN — A federal review of records related to Nebraska’s purchase of lethal injection drugs found “nothing in violation of the law,” an official with the Drug Enforcement Administration said late last week.

A DEA investigator made a March 19 on-site visit to the Nebraska State Penitentiary, which houses the execution chamber and stores lethal injection drugs. The review of records and drug inventories at the prison took place days after the American Civil Liberties Union of Nebraska called for an investigation into how state officials obtained the lethal drugs.

“Plain and simple, they’re in compliance with Drug Enforcement Administration regulations,” DEA Special Agent Matthew Barden of Omaha said in a phone interview late Friday afternoon.

In a March 12 letter to the DEA, the ACLU questioned whether prison officials had duped authorities into issuing a federal import permit by saying it was intended for a prison pharmacy located four miles away from the state pen. The ACLU also questioned whether Nebraska officials used a DEA permit issued to the prison clinic to purchase drugs from distributors who assumed they would be used for medical purposes.

“We did diligent research and presented important questions about these critical issues to the DEA. It is reassuring to know that the DEA took these allegations seriously and opened an investigation,” said Danielle Conrad, executive director of the ACLU of Nebraska.

Questions about how the drugs were obtained stem from the refusal of state authorities to reveal information about the supplier. Such suppliers have been increasingly difficult for death penalty states to come by.

Major pharmaceutical manufacturers have policies prohibiting the sale of their drugs for executions. Pfizer sent a letter to Nebraska officials last year saying three of the four drugs the state intends to use in a lethal injection are on the company’s restricted list and should be returned.

Officials with the Corrections Department and the office of Gov. Pete Ricketts have refused to say whether the state had obtained Pfizer drugs. The officials also have declined to release records identifying the drug supplier, which has prompted independent public records lawsuits filed by The World-Herald, the Lincoln Journal Star and the ACLU. Those lawsuits are set for a trial Monday in Lancaster County District Court.

Marie Coulter, a diversion investigator for the DEA in Omaha, sent an email to prison officials four days after the ACLU letter saying she was going to conduct an on-site review. The World-Herald obtained the email, along with several others related to it, through a public records request.

The emails did not include details of the investigator’s findings. Barden said the review was thorough and found nothing to indicate the drugs were obtained in violation of regulations or federal law.

“We did our due diligence,” he said. “We went immediately to the source. There was nothing that was uncovered that looked anything out of the ordinary.”

Nebraska officials have run into difficulties in obtaining lethal drugs in the past. In 2011, the U.S. Food and Drug Administration ordered the return of an imported sedative because of questions about its origin. In 2015, then-U.S. Attorney Deb Gilg said Nebraska officials were trying to import the same drug from India in violation of federal law.

Prison officials have said the latest round of drugs it has purchased for execution were obtained domestically.

Legal wrangling over the drugs has intensified since late last year when the state notified death row inmate Jose Sandoval it had the substances needed to execute him. Attorney General Doug Peterson has since asked the Nebraska Supreme Court to set an execution date for Carey Dean Moore, sentenced to die for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.

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