My personal priority bill, LB 661, will soon be debated by the full Legislature on General File. Known as a “shield law”, LB 661 creates a new section in public records law protecting individuals involved in the manufacturing of drugs used in lethal injections from harassment and threats. The integrity of the drugs and transparency of the execution process is maintained, as the identity of the drug and the laboratory analysis of the drug are still publicly available. Only the name of the individual is confidential.
One of the most significant impediments to a functional system of capital punishment in Nebraska is the inability to acquire the anesthetic drugs administered to produce unconsciousness during lethal injection. The drugs are not commercially available as a result of political activism by death penalty opponents and public harassment of companies and individuals that manufacture the drug. Due to these shortages, many states have had to turn to specialized compounding pharmacies to formulate individual drug doses. In several cases those compounding pharmacies have ceased production due to harassment.
There is a significant and direct human cost of activist harassment against those who produce drugs that may be used in lethal injection. Death penalty opponents have successfully eliminated sodium thiopental, an anesthetic induction agent routinely used in lethal injection, from the U.S. market in order to protect the lives of convicted death row inmates. Global availability has also been dramatically reduced, notably in developing regions of the world where it is the best option for safe anesthesia.
Sodium thiopental is a safe, effective, and FDA approved anesthetic agent, considered a mainstay of modern anesthesia. I cannot overstate the absurdity or the magnitude of the social injustice of an anesthetic shortage created by those who wish to protect convicted death row inmates in exchange for vulnerable lives around the world who are in need of safe medical care.
Sodium thiopental is just the beginning. As states implement alternative protocols using different drugs, harassment may lead to shortages of midazolam, propofol, and other safe, approved, and effective anesthetic and sedative drugs. Missouri has already withdrawn its plan to use propofol under public pressure that it would be removed from the sale in the United States. Plainly stated, needed and appropriate medical anesthetics are not available due to harassment of manufacturers.
Of the 31 states that currently have lethal injection as a method of execution, 15 have a “shield law” to protect individuals involved in the manufacture of drugs used executions from harassment and threats. The United States Supreme Court has said that since execution by lethal injection is legal, states must be allowed some manner to carry it out an execution. Disclosing the identity of suppliers subjects them to a risk of harm, violence and harassment and would prevent the State from obtaining lethal chemicals needed to perform our State obligations.
I remain a steadfast advocate of transparency in government, especially the votes of public officials. Private citizens, however, have a right to protection from undue harassment and threats for carrying out their jobs as private citizens. Pharmacists and other private citizens involved in the process have not voluntarily pursued public office.
Additionally, Nebraska state law has identified a number of privacy provisions in public records law to protect private citizens and companies in their interactions with state government. These include constituents who correspond with my legislative office, companies that receive tax incentives, companies that receive state dollars through Nebraska Innovation campus affiliated with the University of Nebraska, and trade or proprietary information. If we aggregate company data to protect the identity of companies receiving tax breaks and financial incentives, it is reasonable to protect the identity of private professionals doing their jobs.
In consideration of LB 661, there exists one fundamental issue: the compelling interest to know the identity of the individual who supplies the drug provided in lethal injection. If all other information, including the drug, its composition, and its analysis can be provided to the defense and to the public to provide oversight and scrutiny of the integrity of the compound and the process, what value is the name? That identity provides no material value to the defense or the public, and certainly does not justify the harassment and retaliation of a private citizen.