Death Penalty

Drama as FDA Prepares to Confiscate Execution Drugs Headed for Nebraska

State and federal governments set to clash, according to a report from BuzzFeed News.


Last month, my colleague Lauren Galik wrote about the atypical drama that unfolded when the Nebraska legislature overrode, by a single vote, the governor's veto of a law abolishing the death penalty in the state. Now the situation has gotten even more interesting.

BuzzFeed News has twice reported that the Food and Drug Administration (FDA) is planning to stop a shipment of sodium thiopental when it arrives from India. The drug, which Gov. Pete Ricketts (R–Neb.) plans to use to execute 10 inmates, is banned in this country:

"Please give me a call when you have time to discuss," Nebraska Corrections Director Scott Frakes recently wrote to the would-be supplier of the state's execution drugs. His email contained an attachment: a 2013 court ruling that spells out that the drugs the state spent more than $50,000 on would not be allowed into the United States.

The drugs aren't approved by the Food and Drug Administration, and the court ruling that Frakes attached makes it clear that the FDA has no choice but to seize the drugs when they come to the states.

The shipment, enough for hundreds of lethal injections, is expected to arrive any day now, according to public records and emails obtained by BuzzFeed News.

An FDA representative has already, according to the story, warned the state that "there is no FDA approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States." But Nebraska's chief executive says Nebraska isn't "bound" by the court decision requiring the FDA to seize all incoming shipments of the execution drug—and that the legislature doesn't have the authority to change existing death row prisoners' sentences.

The conflict presents libertarian opponents of both capital punishment and big government, like me, with a conundrum: Should the FDA's smackdown of a decision by a duly elected executive about how to govern his state be welcomed or denounced?

My disdain for agents of a heavy-handed federal bureaucracy is strong, but so is my conviction that the death penalty has no place in America today. To the extent that there are conditions under whch government intervention is justified, halting a sadistic practice that has already led to the state-sanctioned taking of innocent human lives seems like a strong contender. But is it worth embracing a precedent of federal agencies' powers outweighing states' decision-making rights?

The good news is that the veto override in Nebraska suggests the tide is turning against capital punishment. As such, I'm hopeful we're heading for a time when executions are a thing of the past because the people in all 50 states demanded an end to them—no federal intervention necessary.

NEXT: Scalia Attacks Alito for Undermining 6th Amendment Right of Criminal Defendants to Confront Witnesses

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The state should not interfere with whatever chemicals the State wants to inject into a body.

    1. So long as the state is injecting into its own body. Maybe the governor can volunteer first.*

      * As my name suggests, this is mere juvenile bluster, and does not constitute a “true threat” under prevailing laws and court decisions. I am in no way threatening to inject the governor with sodium thiopental.

      1. But the governor vetoed the death penalty bill there. He was overridden by the legislature.

        1. Which is why he can volunteer!

          1. Wow dude, there are some severe penalties in your all-voluntary system!

            1. Scratch all my veto talk above. I have it obviously backwards.

      2. What would the threat be? That you would become governor and then kill yourself?

        1. Yeah.. something like Vault 11

          1. Vault 11 was win, and the best example of why New Vegas rules FO3. Not that I’m not excited for Terraria with Guns 4.

            1. New Vegas was the very essence of win… The story of Vault 11 was one of many cherries on top..

          2. I injected Dogmeat with sodium thiopental.

  2. If it prevents harm then so be it. I will let principles(not killing) override principals (supporting an otherwise murderous FDA) in this case. Something about blind broken clock sqlrs.

    And what makes me better than a partisan hack is that I’m willing to concede to a hated enemy when he is in fact perpetuating not-killing

    1. And what is supporting the FDA kills more people than the death penalty? Is is those people’s duty to die so Libertarians can feel good about themselves?

      1. John, I doubt a single true libertarian* will argue for preserving the FDA because it is a bulwark against executions.

        My guess is that if you polled everybody on this board as to their level of libertarianism, their opinions about the death penalty, whether they approved of this FDA confiscation, and whether they would be willing to disband the FDA tomorrow, the overwhelming response in your population of libertarians who approved of this FDA action would be to disband the FDA tomorrow.

        *Yes I went all true scotsman. So?!?

        1. And now you too show solidarity withYour Future Reptilian Overlords…thanks for sorting out our resident DickSmack

    2. +1. Fuck the FDA in general, but there’s no amount of democracy or whatever other principle you want to cite that gives the state the right to take a person who is already in prison and kill them in cold blood.

      1. In real life, sure. In comic book world, after about the fifth time Joker organized a mass-breakout of Arkham Asylum and/or Blackgate Penitentiary and proceeded to go on a mass-murder spree, I think I’d be comfortable with speedy, humane executions.

      2. The State kills people in a zillion and one ways.

        Being tried, convicted, and sentenced to death seems the *most* justified case of State killings.

  3. I’m wondering what the fuck is the point on behalf of Nebraska. The law becomes effective in September. There’s not going to be any executions before then. So why bother?

    1. The guy who was the one vote that overrode the veto is not anti-death penalty per se, and he specifically said that there was a new lethal injection drug he’d read about that might change his vote.

      I think there is an expectation that Nebraska is not firmly committed to doing away with the death penalty.

  4. The amazing thing is that there is a relatively quick & definitely painless method of execution that isn’t horrific or gruesome or require any special equipment…

    Nitrogen axphyxiation aka anoxia. The guy literally falls asleep, and ten minutes later, he’s dead.

    As a death penalty opponent, I should be glad that state officials haven’t glommed onto this approach, since much of the opposition to the death penalty is based on the impossibility of doing it without running afoul of some ruling regarding cruelty.

    It just amazes me that as creative as they are at coming up with new ways to kill people, they can’t see what is right in front of them.

    1. How about leaving them alone with the victim’s family with the promise they’ll receive immunity no matter what happens?

    2. The guillotine remains the most efficient means, a bit messy, but effective.

      1. a bit messy

        Eh. Hose it off a bit and your ready for the next one.

        1. Have you seen the FDA requirements for dealing with the blood from one of those things?

      2. Or a wood chipper!

        1. No, a titanium sand wedge..

        2. i’m a chipper he’s a chipper she’s a chipper we’re all chippers
          wouldn’t you like to be a chipper too?

    3. I have a feeling the reason they don’t use the simple, cheap method is that there’s no way for anyone to wet their beak in the process. Complicated executions need specific chemical compounds and/or devices that have to be provided by someone, usually someone who charges a shitload for them.

      Any time you see government doing something in a vastly overcomplicated way, look for the cronies and the bureaucrats.

      1. There is that. I think that part of it is also some odd desire to pretend it is some kind of medical procedure and not cold blooded killing.
        Also, gas chambers make people think of Nazi death camps, even if the N2 gas is non-toxic.

        1. Good. They should be thinking of Nazi death camps.

      2. Pushing condemned prisoners out of airplanes didn’t poll well with the focus groups…

        1. Wanna bet?

          1. Alright, fine..

            Pushing condemned prisoners out of airplanes didn’t poll well with the focus groups…”
            Caveat: “if ISIS does it”..

  5. The conflict presents libertarian opponents of both capital punishment and big government, like me, with a conundrum

    Why? The FDA is unconstitutional. The death penalty is just icky.

    1. State-sponsored killing is more than “icky”. Especially given exoneration rates in the last decade.

      1. But it isnt unconstitutional.

        Both kill people. Both are bad ideas. But only 1 is unconstitutional.

        1. Libertarians, I believe, aren’t necessarily bound by what’s permissible by the United States Constitution. I think there can still be ambivalence here.

          1. Indeed. The Constitution is pretty good, but it isn’t pure libertarian principle.

          2. No, but we should oppose unconstitutionalities.

            4 possibilities:

            Libertarian and constitutional. Good.
            Unlibertarian and unconstitutional. Bad.
            Libertarian and unconstitutional. Seems unlikely, but we should oppose until amendment passes.
            Unlibertarian and constitutional. Bad, but harder to change than #2.

            FDA is #2. Death Penalty, as currently practiced, is #4.

            1. At least for me, rule of law is a big value to protect.

              But also, we should consider the scale of the crimes committed, and upon whom they are generally committed.

              The harm cause by the FDA on the general population dwarfs the harm by the death penalty, and the death penalty is generally meted out to someone tried and convicted of serious crime, while the FDA indiscriminately carpet bombs the general population.

  6. Drug? How about calling it a nutritional supplement that helps you die?

    1. The Feds already subsidize sugar.

      1. Some subsidy, it is twice as expensive here as outside the US.

        1. The subsidy is for the benefit of sugar producers, not for the benefit of sugar consumers.

        2. They also place massive tariffs on imported sugar. That is why it’s so expensive. Nothing like subsidizing an industry directly with taxpayer funds and then jacking up prices via punitive tariffs. It’s really doing the citizenry in both ends at the same time.

  7. Here’s a thought:
    If we’re going to get rid of the death penalty, why don’t we do it correctly?

    1. And how would that be?

      1. Making it illegal through the legislature, via a constitutional amendment if necessary.

        As of right now, it’s explicitly constitutional.

        The current strategy seems to be to make the process so cruel that it violates the 8th amendment. Sucks to be the people who are being executed cruelly, but hey, that’s how you make an omelette.

        1. Well a number of states have already done that. But in the others, in spite of routine findings that the state kills mentally handicapped or innocent people way too often (that is, ever), and that the death penalty is applied disproportionately to blacks, there isn’t much momentum at the legislative or the electoral level to do away with it.

          So if you want to talk about broken eggs, why don’t you start with the ones who don’t deserve to be broken at all, or the ones who get broken because their jury was full of fearful/hateful crackers.

          1. I agree with most of that. I’m mobile, I’ll elaborate later.

  8. Rope or Bullets.

    Effective. Not cruel or unusual. Fall outside the FDA’s purview.

    Oh yeah, disband the FDA.

    1. 100% Laughing gas…
      100% effective

  9. FDA is kind of irrelevant here. But if the Nebraska legislature has abolished the death penalty overriding a veto in the process – and the governor is still planning for executions; then Nebraska no longer has a ‘republican form of government’. It has a dictatorship.

  10. Feel free to be as slutty as you wanna be.

    1. I’m all for true reproductive choice. I suspect that we will see a lot of harpy shreeeeking a few years after this

    2. that’s injected under local anesthetic into the man’s sperm-carrying tubes, accessible through the scrotum

      No thanks.

      1. It’s a decent alternative for a vasectomy, and if it is reliably reversible, maybe even for ordinary contraception, but it’s the male IUD, not the male pill.

    3. But I’m already as slutty as I wanna be! This won’t help me be sluttier at all!

      1. Consider it for the common good, consider the gene pool.

        And don’t be all like, “I’m a libertarian. I don’t believe in the common good.”

        Just do it already.

        1. But I’m not a libertarian, and I also don’t believe in the common good! Or gene pools! Or wading pools (how stupid is a wading pool?)!

          No, no, no. I need something that can actually help me be sluttier. Oh! I know! More cocaine!

          1. Well, if you use enough cocaine it may have the same effect, so win-win.

        2. I’m never going to forgive you for changing your name from Lady Bertrum to Lady Dalrymple. LD just sounds lame compared to LB.

          This is like when Bob Dylan went electric.

          1. Also, people might think you’re a European racist.

      2. “But I’m already as slutty as I wanna be”

        Sure, but I’ll bet there are an awful lot of self-loathing women who wish you were less slutty so they could have gotten wasted without making such a terrible, terrible mistake.

        1. Well, that only worked because of the…implication.

          Maybe I should buy a boat…

          1. I dunno, dude, I’m learning some good moves from this inflatable tube guy.

            1. Work first. And then you can do your weird inflatable tube man P. Diddy dance.

    4. “Feel free to be as slutty as you wanna be.”

      Took care of that years ago.

  11. The federal government should not ban a substance simply because it doesn’t like the use some are using it for. If the federal government actually participated in the death penalty, it could stop that.

    I don’t see the conflict the writer states except the one in her mind.

    1. Well except in this case ‘some’ are trying to use the drug on ‘others’ against their will.

      1. But let’s agree that it is done legally…. if your argument is that people are free to violate the law if the law is used against someone’s will, then fine. But that is a separate argument.

      2. Same for guns, but I dont want them banned.

  12. In addition to everything else? Why do they have to make that death chamber look like the surgery room in Jacob’s Ladder?

    NSFW, etc

    Just being dragged into that room, the way it looks, should be considered cruel and unusual punishment.

    1. I know, man. Can you believe the curtains?

  13. Also, in case it hasn’t been mentioned before: Dingbat Storm Window is a vile scumbag. If a pallet load of execution drugs were accidentally dropped on him… from a sufficient height? I wouldn’t shed even the semblance of tear.

    1. He better hope they keep him in solitary cause I don’t see him lasting very long in prison.

      1. I suspect that “death by plunger handle up the ass” would probably be his method of execution in general populace, the FDA would have to address that later..

  14. Twitchy Team reports on hate crimes against Asian-American women

    Correct me if I’m wrong here…isn’t Mika Tan a porn star? Wonder if twitchy knows that. Not that that demeans anything she says, far from it. I just think it’s funny that conservative Twitchy is now promoting porn.

  15. OT: If this exact movie had been released in 2015, the director would have been delighted to be allowed to flee to France.

    1. I’d be his mousekateer.

  16. Can’t they execute people there by just constantly reminding them they live in North Dakota.

    1. If by “North Dakota”, you mean Detroit.. it’s plausible..

      1. North Dakota–Nebraska what’s the difference?

        1. At this point?

  17. One bizarre aspect of this is the interpret’n of this product as being a “drug” under the FFDCA and/or state pharmacy law, when it seems clear enough it’s being used as a chemical weapon. The statutory definition of “drug” is absurdly broad, so it is not read literally, but its exact bounds are never known. Still, it has never AFAIK been claimed that pesticides are veterinary drugs, although they meet the statutory definition literally.

    1. I agree. The chemicals in question are not being used as “drugs,” they are intended as poisons — means of execution. If Nebraska allowed for death by firing squad, there is no way that the FDA could interdict a shipment of bullets. So how can the agency interdict these chemicals, which are not intended medicinally?

  18. I am not a fan of the death penalty, which I think should be reserved for only the most incorrigible, who have the potential to continue to do great harm after conviction and despite incarceration. Still, if we are going to have the death penalty, then the State will use means of execution, and the Federal government’s only interest is in whether the punishment is “cruel and unusual.” There are a lot of substances in the world that aren’t drugs, and a lot of substances that are only drugs because someone had the bright idea to use them medicinally; they have many other (primary) uses, and their importance as drugs is minimal. The FDA could extend its reach to all of the latter, through artful interpretation of the word, “drug,” but it should not. Most importantly, how can the word “drug” encompass “poison”? The lethal injection substance in question is not used, or intended to be used, as a “drug.” It is a method of execution, a POISON. You could pour lye down the gullet of a prisoner, too. The lye would never been seen as a “drug,” but the method of execution might be seen as “cruel and unusual.” So if you inject a prisoner with chemicals that result in death but not agony, so that the punishment isn’t “cruel and unusual,” suddenly the substance employed is a “drug”? I so hope this sparks a court case that goes to the Supremes. There is some major Federal overreach going on, and it needs to be stopped ASAP.

    1. How is it that the Legislature does not have the authority to pass a law that forbids the Executive from carrying out death sentences? I understand that the Executive enjoys the power of pardon and clemency. But it also would seem perfectly reasonable for the Legislature to pass a law saying “from here forward, all executions that haven’t yet taken place are off, and the associated convicts are to be treated in law as having received life-sentences with no possibility of parole.” Isn’t that what the legislation in question did? If not, why not, and why waste an override on something that isn’t going to save lives of people now on death row?

      1. Here is the legislation, as passed over the Governor’s veto: http://www.nebraskalegislature…../LB268.pdf

        On page 8 of 11 of this legislation, we find this:

        Sec. 23. It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.

        Bingo! They wrote the law the way any intelligent, sane person with common sense would write it! So why does the Governor deny their authority to do so? As far as I am concerned, anyone still on death row on the effective date of this law gets an automatic, legislative commutation to life-without-parole.

        However, the Governor disagrees with me. According to this article —…..292237.php — the State constitution invests the exclusive power to change final sentences in the Board of Pardons. In the actual Nebraska State constitution, I only find the “Board of Parole” established, but it has similar powers (though I don’t see any language that makes the power exclusive, such that the legislature cannot exercise it): (see link in follow-up posting because brain-dead Reason message-board software won’t allow more than two links in a posting)

        1. Here is the relevant portion from the Nebraska State constitution:…..icle=IV-13

          1. The legislation’s author says that he was mindful of court cases that affirmed that the “exclusive” power of commutation resided in the Board of Parole, and wrote the legislation so that it would only express the intent of the legislature to commute existing death penalties to life-without-parole. The governor says that the “intent” is “unconstitutional,” which I find to be a ridiculous position. The legislature’s “intent” can be whatever it is. Only an act of government can be unconstitutional or not. If the legislature had actually decreed a commutation, perhaps that might be seen as unconstitutional. I don’t think it would have been, but a court case would probably have been necessary to resolve the question. As things are now, the ball is certainly in the Governor’s court. He can go ahead and attempt to carry out existing death sentences, ignoring the legislature’s “intent.” Or he can respect it and commute those sentences. What a mess! I find myself almost wishing that the legislation had directly commuted the sentences, setting up a necessary court challenge by the Governor, if he intended to perform the executions. The situation seems to wishy-washy right now.

  19. I’ve had surgery in the past, surgery that took three hours and involved a particular part of the anatomy known for it’s expansive nerve endings. I have to tell you, from the time the gas passer asked “I think we’re about ready to begin now” until the recovery nurse asked me if I wanted to sip on some crushed ice seemed like an instant. I understood, post surgery, that while under the knife my very life was in the hands of the guy behind my head. I have come to believe that any lethal injection that seemingly causes “pain” is probably “not felt”.

    I also firmly believe that there are instances of cognitive behavior that, when committed, gives any citizen, or his surrogate, the right to punch your ticket.

  20. “Should the FDA’s smackdown of a decision by a duly elected executive about how to govern his state be welcomed or denounced?”

    How about the disdain of that “duly elected executive” for the laws passed by the state’s duly elected legislature?

    Libertarians are forever complaining about Obama’s high-handed executive actions intruding into areas where Acts of Congress supposedly apply. So why is a libertarian now supporting an executive action by a state governor no less high-handed?

    Is there one law (so to speak) for Democratic presidents and another for Republican governors?

    1. Depends on the process. I got the bicameral legislation thingey but I missed, “a phone and a pen” in the Constitution.

      1. Harvard write: “I got the bicameral legislation thingey…”

        Nebraska has single house legislature.

  21. There are always fireing squads… just get it do and over with…

  22. I buy almost everything except food and clothing from online auctions most people arenâ????t aware of the almost I unbelievable deals that they can get from online auction sites the site that has the best deals is
    BEST PROFIT DEAL CHECK ,,,,,,,,,,,,,

Please to post comments

Comments are closed.