Court Finds Public Has Right to Know From Where Death Penalty Drugs Come

(KFOR NEWS May 18, 2020) The ACLU Nebraska is reacting to a decision from the Nebraska Supreme Court, saying the public should soon gain access to documents identifying the source of drugs used in a 2018 execution, Nebraska’s first by lethal injection.

The ruling is a victory for the ACLU of Nebraska and Nebraska media outlets, which challenged the Nebraska Department of Correctional Services’ (NDCS) denial of public records requests seeking information about lethal injection drugs. Today’s ruling directs disclosure of purchase orders and chemical analysis reports, which may include a host of communications of interest to the public detailing information about the drugs, including their supplier, cost, inventory and means by which they were acquired. By granting the “extraordinary remedy” of a writ of mandamus, the Nebraska Supreme Court held that Scott Frakes, NDCS director and defendant in the lawsuit, violated a clear legal duty to provide the records.

Information could be available to the public as soon as June. Today’s determination directed the District Court for Lancaster County to order NDCS to produce records after redacting portions that are protected under law, such as execution team members’ names and personal information.

ACLU of Nebraska Executive Director Danielle Conrad said the decision affirms Nebraska’s proud tradition of open government.

“Nebraskans and the press will finally learn critical details surrounding the death penalty – the most grave and irrevocable use of state power. Open, transparent government is a bedrock Nebraska tradition; it’s so deeply valued by citizens across the political spectrum because it provides a check on the abuses of big government. We’re pleased the Court agreed that Nebraskans have a right to know what the state is doing with taxpayer dollars and will finally bring transparency to this suspect process.”

The ACLU’s records request came two years after the state spent $54,000 dollars of public funds to order drugs that never arrived from an international supplier – a matter that only came to light after open records requests. An ACLU investigation found both the Food & Drug Administration and the Drug Enforcement Agency had warned Nebraska against trying to import the drugs.

The ACLU continues to advocate for Nebraska to reject the death penalty. More background on Nebraska’s history with the death penalty and lethal injection is available at: https://www.aclunebraska.org/en/campaigns/tinkering-machinery-death.