On March 5, the Nebraska Legislature voted to add Governor Ricketts’s pick, veterinarian and former state senator John Kuehn, to the Board of Health. Kuehn is engaged to Ricketts’s campaign manager and all-round political strategist, Jessica Flanagain. Kuehn had run unopposed for his one term in the Nebraska legislature, ending in 2019. During his term he pushed the standard Ricketts agenda, including proposing a bill that would keep the records of death penalty drugs secret. He explained that extending the secrecy laws shielding the execution team to also shield the supplier would “address the functional problems with the death penalty.”
It wasn’t too surprising when Kuehn, being so closely associated with Ricketts, started working for Ricketts’s organization to keep medical marijuana illegal in Nebraska. When he was nominated for the Board of Health, critics understandably speculated that Ricketts wants to appoint his anti-marijuana lackey and advisor’s fiancee to advance his anti-marijuana agenda.
But another reason Ricketts might want to reward his lapdog veterinarian is even more sinister. Could Kuehn be the way Ricketts procured fentanyl for the state’s most recent execution?
Remember: Ricketts really loves being able to kill people. Even when the legislature voted to abolish the death penalty and overrode his veto of the abolition, Ricketts pumped his unearned personal fortune into funding a ballot initiative to get his ability to execute back.
But even with the legal ability to execute, Ricketts has had a hard time getting the drugs he needs to perform executions. In 2015, Ricketts was unable to import execution drugs he tried to illegally procure from India, wasting $56,000 of state money on execution drugs that ended up spoiling in port. In 2017 and 2018, when he and Director of Correctional Services Scott Frakes finally decided upon a fentanyl cocktail, they had an extremely difficult time finding a pharmacy that would supply the drugs. By their own account, they contacted 40 pharmacies and were refused. Kuehn, who was clearly in conversation with Ricketts about these troubles, was on hand to help by proposing the secrecy bill. The state finally found a supplier, and Frakes has refused to say how the state got the drugs, even when the pharmaceutical companies sued.
The state has refused to divulge the source of the drugs even when a court found they they were violating the law by withholding the information from public records requests. In their appeal to the state supreme court last fall, the state has claimed that they can withhold the source of the drugs because it would reveal clues about the identity of the execution team.
What we know is that the pharmaceutical companies claimed that the drugs must have been acquired through deceit, fraud, or misrepresentation given various contracts controlling their dispensing, and that Frakes denied this.
Specifically, Frakes swore under oath the following for an August 2018 court case against the pharmaceutical companies:
- The execution drugs “were obtained from a licensed pharmacy in the United States.” The passive verb avoids clarifying who obtained them from the pharmacy.
- The drugs were chemically tested afterward.
- The Nebraska Department of Correctional Services didn’t get the drugs “by any fraud, deceit, or misrepresentation by the Department” or to the best of his knowledge by any fraud by an official of the state. (Emphasis mine.)
Fentanyl and potassium chloride are both available to veterinarians. John Kuehn is a licensed veterinarian in the state of Nebraska. A licensed veterinarian in the state of Nebraska can write a prescription for fentanyl so long as he affirms it is for a non-human animal whose owner is a client. These records are specifically protected as confidential and may not be released by the state. So it appears to be entirely possible for Kuehn to have prescribed fentanyl to someone with a pet.
Once the drug is in hand and used in the execution, state law kicks in to protect anyone involved in the execution from criminal and professional penalties for participating. Here is the actual law:
Notwithstanding any other provision of law:
(1) Any prescription, preparation, compounding, dispensing, obtaining, or administration of the substances deemed necessary to perform a lethal injection shall not constitute the practice of medicine or any other profession relating to health care which is subject by law to regulation, licensure, or certification;
(2) A pharmacist or pharmaceutical supplier may dispense the designated substances, without a prescription, to the Director of Correctional Services or the director’s designee upon production of a written request from the director for the designated substances necessary to conduct an execution;
(3) Obtaining, preparing, compounding, dispensing, and administering the substance or substances designated by the execution protocol does not violate the Uniform Controlled Substances Act or sections 71-2501 to 71-2512; and
(4) If a person who is a member of the execution team is licensed by a board or department, the licensing board or department shall not censure, reprimand, suspend, revoke, or take any other disciplinary action against that person’s license as a result of that person’s participation in a court-ordered execution.
So, in other words, in spite of any other laws that may be on the books, obtaining the execution drugs is exempt from the regulations of the health care professions, and is exempt from the laws applying to controlled substances. Further, any licensed professional who helped get or administer the drug cannot have his or her professional license dinged for doing so.
The execution protocol maintained by the Department of Corrections allows the Department to get the drugs from a pharmacy “or any other appropriate source.” That leaves the possibilities wide open. What in any of this would stop a veterinarian from getting the drugs and providing them?
Not only is the state keeping the source of the drugs secret in apparent violation of the law, but they are also, in accordance with the law, keeping secret the members of the execution team. The execution team does not include a doctor. The person who administers the drugs to the prisoner is only required to have been trained in using IVs and “shall have completed training as an emergency medical technician” and other skills one could pick up in various ways. Well, according to the Nebraska licensing web site, John Kuehn completed his EMT training in 1996. So for all we know Kuehn may have not only obtained the drugs for the execution, but may have also been the one who administered them to the prisoner. We cannot know, because the IV team remains behind a wall so they cannot be seen by witnesses to the execution–witnesses who did not see much anyway, because the blinds were drawn for 14 minutes as the prisoner died.
Is it ridiculous to speculate that a governor who was so fixated on executing people that he broke federal law attempting to import one batch of drugs would later, after being rejected by 40 pharmacies, accept help from a close political ally who could get the drugs under shield of law? An ally who is the romantic partner of Ricketts’s closest advisor–an ally he has put in charge of his other pharmaceutical project and placed on the Board of Health? This governor has been shameless about secrecy, interference, and nepotism. Someone had to be the supplier and the guy in charge of the IV, and why wouldn’t it be someone who has the means to pull this off and is in a clear favor exchange relationship with Ricketts? Transparency avoids speculation. If this speculation is off-base, it’s up to Ricketts to be transparent.