Nebraska holds $20 million contract with distributor who supplied death penalty drug in Nevada
By Joe Duggan
LINCOLN — Nebraska holds a $20 million contract with the same pharmaceutical distributor caught up in a lethal injection dispute that has delayed an execution in Nevada.
Nebraska prison officials won’t say whether the distributor sold them the four drugs intended for the Aug. 14 execution of Carey Dean Moore. But the Nevada case offers a possible explanation as to how Nebraska may have obtained the drugs.
The Nevada case is also significant because it marks the first time an execution has been delayed by a drug manufacturer’s legal objections over the use of its product. A similar legal challenge, which as of yet has not been filed in Nebraska, might represent one of the few ways Moore’s execution could be delayed.
The Nebraska Department of Correctional Services does regular business with Cardinal Health, a national wholesale distributor based in Ohio. In June, the same distributor sold a sedative called midazolam to Nevada, where correctional officials wanted to use the drug for a lethal injection.
Alvogen, the company that manufactures midazolam, contended that its product was illicitly diverted to Nevada’s execution chamber and recently filed a lawsuit to block its use in the execution of double murderer Scott Dozier.
“While Alvogen takes no position on the death penalty itself, Alvogen’s products were developed to save and improve patients’ lives and their use in executions is fundamentally contrary to this purpose,” the company stated in a legal filing.
The drug was shipped to a prison pharmacy, giving the impression that it would be used to treat Nevada inmates who needed medical care, according to the company’s lawsuit. The lawsuit alleged that Cardinal Health had been duped into the sale.
A Nevada judge postponed the July 11 execution to sort through the allegations levied by the drugmaker. The judge’s ruling came despite the fact that Dozier, like Moore on Nebraska’s death row, has waived his appeals and wants to be put to death.
Alvogen makes none of the drugs that Nebraska intends to use in its lethal injection.
But Cardinal Health, the distributor, holds a multiyear contract to sell both prescription and over-the-counter drugs to multiple Nebraska state agencies.
Could Cardinal Health also be the source of some, if not all, of Nebraska’s four death penalty drugs?
Laura Strimple, spokeswoman for corrections, would not say.
“NDCS is not disclosing information about the supplier,” she said.
A spokeswoman for Cardinal Health did not respond to an email with questions about a possible lethal drug transaction with Nebraska. Nor did she respond to follow-up messages.
Nothing in public contractual documents shows that Nebraska corrections officials bought the lethal injection drugs from Cardinal Health. It’s possible, for example, that prison officials obtained the drugs from a different distributor or a compounding pharmacy.
In March, the American Civil Liberties Union of Nebraska sent a letter to the Drug Enforcement Administration questioning whether Nebraska officials had misused a federal permit to buy the drugs. The ACLU suggested that prison officials may have duped a distributor into thinking the drugs would be used for inmate medical care.
The letter prompted a review of Nebraska’s drug purchase by DEA investigators. A DEA official said in May that the investigators found “nothing in violation of the law.”
Danielle Conrad, executive director of the state ACLU, said knowing the source of Nebraska’s lethal injection drugs is important because of the gravity of executions. She noted the state’s past difficulties with getting drugs for lethal injections. Nebraska previously obtained execution drugs from a shadowy overseas supplier.
“Nebraska is seeking to carry out the first execution in the country with this untested four-drug protocol created in secret, risking unnecessary pain and a botched execution,” she said. “In a democratic society, key facts like the source of execution drugs matter.”
Conrad said pharmaceutical companies have made it clear that their drugs are meant to save lives, not take them.
“If the state of Nebraska violated contract provisions or disregarded company policies in securing these lethal injection drugs by suspect means, we all have a right to know that and seek remedies,” she said.
Nebraska plans to use diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride, a combination never before used for an execution.
Regardless of how Nebraska obtained its drugs, the company that made three of them doesn’t want its products used in Moore’s execution.
Pfizer mailed letters last year to Nebraska officials asking for the drugs’ return. Sandoz, the maker of the fourth drug, also has indicated that it does not want its product used in lethal injections.
Pfizer and Sandoz have not taken their objections to court, which some think could be one of the few remaining ways Moore’s execution could be stopped. That’s because Moore has said he no longer wants to fight the state’s efforts to execute him.
When asked if Pfizer is contemplating legal action, a company spokesman declined to comment last week.
If the August execution goes forward, it would mark the first lethal injection in Nebraska and the state’s first use of capital punishment in 21 years. The 60-year-old Moore, who is sentenced to die for the 1979 slayings of Omaha cab drivers Reuel Van Ness and Maynard Helgeland, is the state’s longest-serving death row inmate.
In the past, Nebraska prison officials have released records identifying their drug supplier. But now they are following a secrecy strategy adopted by most death penalty states in an attempt to keep their drug pipelines open.
The World-Herald, the Lincoln Journal Star and the ACLU of Nebraska filed lawsuits arguing that the records should be released in the interest of government transparency and accountability. A district judge sided with the newspapers and the advocacy group, but the Attorney General’s Office blocked the release of the records by quickly appealing the judge’s order.