First, there were hangings and firing squads. Then, the electric chair and gas chamber. After that, lethal injection. At each step, executions were thought to be getting more humane, less cruel and unusual. And yet we come to find that certain combinations of drugs used for lethal injections are far from as painless as we thought they were. And after several recent botched executions, some states may even be returning to firing squads.

One reason is that drug makers have either been refusing to sell to corrections departments or suing to block executions using their drugs. One such lawsuit may halt Nebraska’s first ever lethal injection, and first public execution since 1997.

Execution Drugs on the Street

Nebraska actually repealed the death penalty in 2015, over Governor Pete Ricketts’ veto. The next year, however, a referendum to overturn the legislature’s abolition of the death penalty passed with 61 percent support. Nebraska has never executed a person via lethal injection, and if the U.S. division of German drug manufacturer Fresenius Kabi has its way, it may not yet. The company is suing to delay the execution of Carey Dean Moore, a death row inmate convicted of killing two cab drivers in Omaha in 1978.

Fresenius claims the Nebraska Department of Correctional Services has 25 vials of its potassium chloride and some of its cisatracurium besylate, two of the four drugs the state intends to use in Moore’s lethal injection cocktail. The lawsuit claims that, if those drugs were in fact manufactured by Fresenius, the department must have obtained them “through improper or illegal means,” since the company has strict distribution controls in place to make sure its drugs are not used in executions. It could also be against the law — according to the suit, using the drugs in a lethal injection “would be an improper use of these products, which are intended to save lives, and could have far-reaching negative consequences on public health due to European Union regulation 1252/2011, which prevents trade in products that could be used for capital punishment or torture.”

Nebraska Attorney General Doug Peterson claims the drugs were purchased lawfully and pursuant to the state’s duty to carry out lawful capital sentences, but state officials have refused to identify the source of the drugs, and appealed a district court order to make information on the lethal injection drugs public.

Keeping Their Drugs Out of Executions

Botched executions in Alabama, Arizona, Ohio, and Oklahoma have cast doubt on the belief that lethal injection is a painless process. Some states have banned certain drugs used in lethal injections, and the FDA has had to intercept some drugs illegally bound for executions. And many drug manufacturers are fighting to keep their products out of the hands of state executioners. Along with Fresenius Kabi USA, West-Ward Pharmaceuticals, Lundbeck, and Pfizer have all banned the use of their products in lethal injections. This has led to a shortage of drugs available for executions, and states have been scrambling to find replacements.

But action from the drug companies may be the only thing that slows or ends executions in the United States. While many states have repealed the death penalty, the U.S. Supreme Court, over Justice Sonia Sotomayor’s constant objections, has shown little inclination to put the reins on lethal injection, even in the face of tortuous evidence.

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