LINCOLN — The Nebraska Legislature will order the state prisons director to answer questions about the new lethal injection protocol at a public hearing set to take place in two weeks.
It remains to be seen whether Scott Frakes, head of the Department of Correctional Services, will fight the order.
State Sen. Laura Ebke, chairwoman of the Judiciary Committee, said Tuesday that lawmakers will take the unusual step of issuing a subpoena because Frakes last week refused to answer questions voluntarily. In a recent letter, Frakes declined a request to appear before the committee “on the advice of legal counsel, and because of pending litigation.”
Five lawsuits related to the death penalty are currently in state courts. In addition, the American Civil Liberties Union of Nebraska has filed a complaint with the U.S. Drug Enforcement Administration, alleging that state officials violated federal regulations to obtain the lethal drugs.
Meanwhile, Attorney General Doug Peterson recently asked the Nebraska Supreme Court to set an execution date for one of the 11 men on death row. State officials are trying to carry out Nebraska’s first execution in 21 years.
The issue before the Legislature is a complaint filed last month by Sen. Ernie Chambers of Omaha, an outspoken death penalty opponent who has questioned whether corrections officials followed state requirements when they devised a new lethal injection protocol in 2016 and 2017. The new protocol gives the prisons director greater latitude to decide what drugs to use to execute an inmate than did the previous procedure, which required a specific three-drug combination.
Much like a court, legislative committees have the power to issue subpoenas to obtain testimony and documents from state personnel for the purposes of special investigations.
The Legislature used its subpoena authority in 2014 when it questioned corrections staff over the miscalculations of inmate release dates, which led to the early discharge of more than 200 prisoners. A special committee also probed the department’s handling of Nikko Jenkins, who murdered four Omahans within days of his release in 2013 after telling prison employees that he would go on a killing spree.
The Legislature will subpoena Frakes no later than the end of the week, Ebke said. He could either appear at the public hearing or seek a court order to block the subpoena. A corrections spokeswoman declined Tuesday to discuss what Frakes will do.
In his letter to Ebke, Frakes said he wouldn’t testify because of the lawsuits, including one in which Chambers is a plaintiff.
The list also includes complaints by The World-Herald and the Lincoln Journal Star. The newspapers have not challenged the legality of the death penalty but have asked a judge to order the release of public records showing where corrections officials purchased the drugs it intends to use to execute Carey Dean Moore and Jose Sandoval.
The eight-member Judiciary Committee has set the hearing for 9 a.m. May 8 at the State Capitol.
Ebke said that only the compelled testimony of Frakes is planned, but that could change. She said she anticipates that the committee will issue a report later.
“Most people would agree if the state is going to put someone to death, we ought to make sure the process we’ve established for ourselves is followed,” she said.