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Sen. John Kuehn

Sen. John Kuehn

District 38

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The Nebraska Department of Corrections recently notified convicted death row killer Jose Sandoval of the four drugs that will be used as a lethal injection protocol to carry out his execution. This notification is in accordance with state regulations, which is required at least 60 days before the Attorney General can request an execution warrant from the Nebraska Supreme Court.

The four drugs that will be used by the state have been used medically for decades. Their mode of action, onset of activity, and clinical effects are well known and documented. Each is currently used in a wide variety of medical applications in practices across the state. It is highly likely you or a family member have been administered one or more of the compounds during routine anesthesia. Nevertheless, death penalty opponents have mischaracterized the combination as “untested” and “unproven” in an attempt to create doubt about their use. Regardless of one’s opinion about the death penalty, distorting the pharmacological facts about approved, widely used anesthetics to achieve a political end is unethical.

The four drugs in the protocol are diazepam, fentanyl, cisatracurium besilate, and potassium chloride.  Diazepam is a sedative medication that is commonly known by its trade name, Valium. It has a wide variety of clinical uses, including for anxiety, seizure control, resolution of muscle spasms, and as a sedative before administration of general anesthesia. It is included on the “List of Essential Medicines” compiled by the World Health Organization (WHO), which is considered the standard of care for safe and effective medicines in a healthcare facility. Approved in 1960, an article in the journal ACS Chemical Neuroscience on diazepam states it “set the standard for pharmacotherapy in terms of potency, onset of action, and safety”.

Fentanyl is also a widely used and well known opioid. Also introduced in 1960, fentanyl is available in a wide variety of formulations for uses as a potent pain medication. In addition to its use as an injection and tablet, fentanyl is available in patches, which administer the drug through the skin. Fentanyl patches are also included on the WHO List of Essential Medicines. Fentanyl lollipops are used by the US military as an effective way of delivering pain relief to injured troops in the field. Its onset of action is within five minutes, and a single therapeutic dose provides over 30 minutes of effect. The effects of fentanyl overdose are well documented. Illegal use of fentanyl as a street drug by opioid addicts has led to the deaths of tens of thousands in the U.S. since 2000.

Cisatracurium is a paralytic agent used by anesthesiologists in addition to general anesthesia during routine surgery. Paralytics are required when using a mechanical ventilator, such as heart surgery. Some anesthesia protocols also routinely use cisatracurium to relax the muscles of the head and neck to allow placement of an endotracheal tube in the airway. Atracurium is its parent compound, and has been in use since 1974. A 2014 study published in the Journal of International Medical Research details a double-blind randomized trial that demonstrated cisatracurium effectively prevented pain associated with the injection of propofol, a common  injectable anesthetic agent. The pain prevention was as effective as administering lidocaine, the commonly used local anesthetic.

Potassium chloride is a salt that is added to intravenous fluids to treat low blood potassium.  At high doses the potassium causes paralysis of the heart muscle and cardiac failure. Potassium chloride has been used as the third drug in lethal injection protocols that have satisfied judicial review. Accidental overdose of undiluted or improperly calculated potassium chloride via intravenous fluids is a well-documented medical error leading to sudden death in hospitalized patients. The journal Pharmacy and Therapeutics published an article in 2011 titled “Potassium Chloride Injection Still Poses Threats to Patients”, documenting steps health care facilities needed to adopt to address “lingering problems associated with concentrated KCl”.

It is true that the combination of these four drugs has not been used in an execution. That does not mean their clinical effects, when used alone or in combination, are unknown. Their use at therapeutic levels is common and well-studied. The fatal effects of overdose of each of these compounds, either accidental or intentional, has been documented.

Misrepresenting the science of the drugs for a political end has far reaching implications. Both diazepam and fentanyl are WHO Essential Drugs, as is another anesthetic, sodium thiopental. Activism and misrepresentation of sodium thiopental has virtually eliminated the drug from the global market, at the cost of untold lives. Accurate, evidence based information and reporting will hopefully prevent a similar fate for these medications.   

 

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.

At a recent forum sponsored by death penalty opponents in Hastings, the representative of the political campaign opposing the death penalty stated most people who vote will only spend “30 seconds learning about the issue”. Her implication that overwhelming public support for repealing the Legislature’s elimination of the death penalty was based on voter ignorance was as incorrect as it was condescending. Contrary to her dismissal of voters as uniformed, I have found most voters asking serious and thoughtful questions about capital punishment. Unfortunately, too often facts about the death penalty in Nebraska are distorted and misrepresented by death penalty opponents.

A frequent talking point of death penalty opponents is that the system for carrying out the penalty is broken beyond repair. The “broken” assertion refers to the inability to obtain sodium thiopental, the anesthetic drug administered to produce unconsciousness during lethal injection. What capital punishment opponents do not tell voters is that the drug is only unavailable due to political activism and public harassment of companies that manufacture the drug. One single statutory changes fixes the allegedly “broken beyond repair” system and enables legal access to sodium thiopental.

Statutory protection of the identity of the manufacturer of sodium thiopental would open a domestic source. Twelve states already have existing shield laws in place. Transparency can be successfully guaranteed, making laboratory analysis of the drug publicly available for evaluation of purity and efficacy of the pharmaceutical. If Nebraska voters repeal the legislature’s action, senators can quickly fix a system they have heretofore refused to repair.

Voters are likely unaware of the human cost of death penalty opponent’s successful elimination of sodium thiopental from the U.S. market to protect the lives of convicted death row inmates. Sodium thiopental is a safe, effective, and FDA approved anesthetic agent, considered a mainstay of anesthesia. Protests led the last U.S. manufacturer of sodium thiopental to cease production of the drug in 2009. Sandoz, a subsidiary of Novartis, manufactures the drug in Europe, but the company has banned its import into the United States to prevent its use in lethal injection.

The unavailability of sodium thiopental in the United States prompted the American Society of Anesthesiologists to appeal to the FDA to aid in importation of sodium thiopental, citing “a dangerous reduction in the availability of anesthesia induction medications” and “that the safety of American patients is now in jeopardy.” The anesthesiologists stated “it is an unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use”.

Propofol, the anesthetic drug substituted due to the lack of sodium thiopental, is not indicated for use in pregnant, geriatric, cardiovascular, or neurologic surgical patients because it causes dangerous drops in blood pressure and respiratory depression in newborns. A second class of drugs, called pressors, are required to counteract propofol’s negative effects. Propofol has also experienced production shortages, leaving physicians with less than optimal options for safely anesthetizing patients.

The assertion of sodium thiopental is considered “illegal” by FDA and implication that it is unsafe is absolutely false. Sodium thiopental is an FDA approved, safe, and effective drug. Its importation has been restricted by executive action of the DEA, a law enforcement agency. Domestic production is legal.

I opposed the Legislature’s elimination of the death penalty on every vote. My research of states that effectively utilize capital punishment proves Nebraska’s system is fixable. Senators have within their ability a straightforward, proven solution to make Nebraska’s death penalty enforceable. Instead, previous Legislatures have failed to act and further complicated the system to create a narrative that it was ineffective and unfixable. Voters should not be misled, and patients should not be denied effective medical therapy to protect convicted killers.

Sen. John Kuehn

District 38
Room #12th Floor
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2732
Email: jkuehn@leg.ne.gov
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