Fentanyl is Injected Back into the News Following Its First Use in Capital Punishment

*Joseph Stephan

In the midst of botched executions and challenges in acquiring the traditional drugs used for lethal injections, states have been forced to explore alternative methods of execution.  See, e.g., Tracy Connor, Oklahoma Says Gas Will Replace Lethal Injection in Executions, NBC News (Mar. 14, 2018, 5:38 PM), https://www.nbcnews.com/news/us-news/oklahoma-says-gas-will-replace-lethal-injection-executions-n856721.  With lethality and availability concerns looming, Nebraska has turned to fentanyl, the fatal synthetic opioid at the core of America’s opioid crisis.  Mitch Smith, Fentanyl Used to Execute Nebraska Inmate, in a First for U.S., N.Y. Times (Aug. 14, 2018), https://www.nytimes.com/2018/08/14/us/carey-dean-moore-nebraska-execution-fentanyl.html.  Carey Dean Moore, who was sentenced to death for killing two taxi drivers in 1979, was executed with a “four-drug cocktail” of diazepam, fentanyl citrate, cisatracurium besylate, and potassium chloride.  Id.  The use of fentanyl in Moore’s execution, a first in the United States, drew fierce resistance from opponents of the death penalty and drug companies alike.  See Joe Duggan, Nebraska is Moving Closer to Its 1^st Lethal Injection, but Timing is up to Court, Omaha World-Herald (Apr. 30, 2018), https://www.omaha.com/news/courts/nebraska-is-moving-closer-to-its-st-lethal-injection-but/article_3197ccf0-6820-589d-b1da-dcee0b7be223.html.

I.  The Evolution of Capital Punishment in the United States

America has a long and complicated relationship with capital punishment.  See Part I: History of the Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/part-i-history-death-penalty#intro (last visited Sep. 14, 2018).  The use of capital punishment in America dates back as far as the nation itself.  See id.  While the abolitionist movement can be traced to colonial times, Michigan was the first state to ban capital punishment in some capacity in 1846, when the state restricted the penalty to those convicted of treason.  Id.  After a resurgence culminating in a 1930s peak, public opinion rejected executions again in the 1950s.  Id.  From 1972­ to 1976, a moratorium on the death penalty was put in place following the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972).  Ben Grimes, Furman v. Georgia Turns 42, Nat’l Coal. to Abolish the Death Penalty (June 26, 2014), http://www.ncadp.org/blog/entry/furman-v.-georgia-turns-42.  The conclusion of the moratorium and the return of capital punishment to the American justice system coincided with the advent of execution by lethal injection.

Lethal injection as a means of execution was first proposed in the late nineteenth century but was not adopted until 1977 and was not used until 1982.  See Kate Pickert, Lethal Injection, Time (Nov. 10, 2009), http://content.time.com/time/nation/article/0,8599,1815535,00.html; Descriptions of Execution Methods, Death Penalty Info. Ctr.,  https://deathpenaltyinfo.org/descriptions-execution-methods (last visited Sep. 14, 2018).  Lethal injection is the primary method in all of the thirty-one states that still permit the death penalty in some capacity.  See Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/methods-execution (last visited Sep. 14, 2018).  However, protocols, as well as the number and type of drugs used to execute, differ from state to state.  See State by State Lethal Injection, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-lethal-injection (last visited Sep. 14, 2018).  The varying protocols give rise to challenges, and as a result, litigation is ongoing in many of the thirty-one states in which the death penalty is authorized.  See id.  Nebraska’s newest protocol, which includes using synthetic opioid fentanyl in a four-drug cocktail, is no exception.  See id.; see also Fresenius Kabi USA, LLC v. Nebraska, No. 4:18CV3109, 2018 WL 3826681 (D. Neb. Aug. 10, 2018), aff’d, 2018 WL 3831007 (8th Cir. Aug. 13, 2018).

II.  Litigation Surrounding Nebraska’s Use of Lethal Injection

Nebraska’s recent history with the death penalty is a microcosm of the broader American story of capital punishment.  After the state legislature abolished the death penalty in 2015, over a gubernatorial veto, the people of Nebraska overwhelmingly voted to resurrect the penalty in a 2016 referendum.  Paul Hammel, Nebraskans Vote Overwhelmingly to Restore Death Penalty, Nullify Historic 2015 Vote by State Legislature, Omaha World-Herald (Nov. 9, 2016), https://www.omaha.com/news/politics/nebraskans-vote-overwhelmingly-to-restore-death-penalty-nullify-historic-vote/article_38823d54-a5df-11e6-9a5e-d7a71d75611a.html.

In its six-count complaint filed a week before the execution, Fresenius Kabi USA alleged that the Nebraska Department of Corrections improperly obtained cisatracurium besylate and potassium chloride, and sought injunctive and declaratory relief to prevent the use of the drugs it allegedly manufactured in an execution.  Fresenius Kabi USA, 2018 WL 3826681, at *2.  The United States District Court for the District of Nebraska denied Fresenius Kabi USA’s motion for a temporary restraining order and noted that the public interest factor heavily favored Nebraska because any result to the contrary would jeopardize the proper functioning of the state’s democracy.  See id. at *5–6.  This ruling came one month after Nevada’s plan to use fentanyl in a three-drug cocktail was challenged by a manufacturer of midazolam (one of the other two drugs in the formula) and blocked by the Clark County District Court.  See Crimesider Staff, Scott Dozier Case: Hours Before Execution, Judge in Pharma Company Suit Halts Use of Drug, CBS News (July 11, 2018, 5:20 PM), https://www.cbsnews.com/news/scott-dozier-case-nevada-judge-halts-use-of-drug-hours-before-execution-after-companys-suit/.  While neither case concerned fentanyl specifically, the news surrounding both did.  See, e.g., Madison Park & Steve Almasy, Nevada Execution with New, Controversial Drug Combination on Hold, CNN (July 11, 2018, 4:26 PM), https://www.cnn.com/2018/07/11/health/scott-dozier-nevada-execution/index.html; Grant Schulte, Nebraska Executes Inmate Using Powerful Opioid Fentanyl, AP News (Aug. 14, 2018), https://apnews.com/5df07889ab7a433aa31d7af76d95a6a4.

III.  Fentanyl in the News

America’s relationship with opioids is injected with irony.  After implementing vast marketing and promotion efforts contributing to the opioid crisis afflicting the nation, pharmaceutical companies now wish to distance themselves from controversy and limit the use of their products in executions.  See Scott Neuman & Alison Kodjak, Drugmakers Spent Millions Promoting Opioids to Patient Groups, Senate Report Says, National Public Radio (Feb. 13, 2018, 4:24 AM), https://www.npr.org/sections/thetwo-way/2018/02/13/585290752/drugmakers-spent-millions-promoting-opioids-to-patient-groups-senate-report-says.  This is nearly as puzzling as Presidential threats of capital punishment for illegal dealers of fentanyl, while the government at the same time approves using the same drug to carry out executions.  See Jennifer Jacobs & Steven T. Dennis, Trump Tells Sessions He Favors Death Penalty for Fentanyl Dealers, Bloomberg (Aug. 23, 2018, 6:41 PM), https://www.bloomberg.com/news/articles/2018-08-23/trump-is-said-to-propose-death-penalty-for-fentanyl-dealers.

IV.  Conclusion

Although the irony is obvious, the solution is not.  Both the opioid crisis and the death penalty are unlikely to disappear in the near future.  The two are more intimately related than ever before, and the pending litigation surrounding lethal injection protocols in several states provides evidence of this uncertain state of affairs and is sure to breed further debate.  In the words of U.S. District Judge Richard G. Kopf, “Carey Dean Moore is at the center of this . . . . Legal realism and common decency require that he not be forgotten.”  Fresenius Kabi USA, 2018 WL 3826681, at *1.

* Joseph Stephan is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review. Joe is a law clerk at Silverman|Thompson|Slutkin|White, the Law Scholar for Professor William Hubbard’s Civil Procedure I course, and a member of the Royal Graham Shannonhouse III Honor Society. This spring, Joe will be the Law Scholar for Professor Phillip Closius’s Constitutional Law I course.