A grand jury that reviewed a 50-year-old prison inmate's death last year officially found he died of undetermined causes but said the most probable explanation was a drug overdose.
Kak Thoan's death marks at least the fifth documented death of a Nebraska prison inmate suspected — or known — to be due to a drug overdose since 2020, according to a Journal Star review of grand jury reports and transcripts.
In addition to Thoan:
* Isaac Serrano-Dominguez, 20, died Dec. 8, 2022, at the Tecumseh State Correctional Institution of an accidental fentanyl overdose.
* Three other inmates assigned to the Community Corrections Center-Omaha, a community-based facility that houses inmates participating in work release, also died of overdoses. Carmichael Elya, 21, on Feb. 4, 2020; Chance Ryks, 35, on April 12, 2023; and Cody Wilbourn, 30, on Nov. 12, 2021.
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Of the five, two had gotten access to the drugs despite being inside locked Nebraska Department of Correctional Services' facilities, illustrating the challenge administrators and staff face keeping illicit contraband out of inmates' hands.
"It is concerning when you have people die in prison of unexpected causes," Doug Koebernick, Inspector General of the Nebraska Correctional System, told the Journal Star. "But you can't be surprised by it because it happens in the community, so it's going to happen in the prison system, too, at times."
He said contraband, and specifically drugs, are a problem in any correctional system, and it's always a concern.
"It's really hard for the department, or any department, to stop the contraband. They do what they can," Koebernick said.
Just one example: He said at the Nebraska State Penitentiary, they had a problem of people driving up and throwing stuff over the wall, so they spent money to build a fence so cars couldn't get as close.
In 2020, a man went to prison after trying to get marijuana into the Lincoln Correctional Center using a drone.
More drugs in prisons?
But Koebernick couldn't say whether there are more drugs now in Nebraska's prisons or not.
And, if the Nebraska Department of Correctional Services knows, they're not saying.
Last week, a spokeswoman for Prisons Director Rob Jeffreys said he wasn't available to speak with the Journal Star on the issue or respond to questions by email.
But drugs appear to be on his radar, according to the department's strategic plan for July 2023 to December 2024, which he described as a "road map for where we need to go and how we will get there."
Among 20 bulleted goals were two on the topic: developing a treatment plan or policy for incarcerated individuals with opioid addiction or withdrawal; and decreasing contraband in secure facilities.
Related to the second, Corrections Department spokeswoman Dayne Urbanovsky said that on May 28 staff will begin using a body scanner security screening system (an idea the Inspector General's Office recommended in 2021 but then-Director Scott Frakes rejected) for visitors at the Reception and Treatment Center, the prison on the southwest edge of Lincoln.
That's the prison where Thoan was found unresponsive in a cell last summer.
In Thoan's case, investigators couldn't say definitively it was a drug overdose because the drug didn't show up on the toxicology report — a growing problem due to drug analogues.
According to transcripts from the Lancaster County grand jury called last month to review the death, the Omaha doctor listed his cause of death as undetermined, noting that it appeared to have been a novel or emerging drug that could not yet be detected by standard toxicology panels.
"Essentially, the autopsy report could not identify a physical cause of Mr. Thoan's death. And essentially, the toxicology screen also looks clean, correct?" Deputy Lancaster County Attorney Dan Zieg asked Nebraska State Patrol Investigator Amanda DeFreece at the grand jury.
"Correct," she said, but that just means they don't know what specifically to test for.
Early on the morning of Thoan's death, July 11, 2023, a correctional officer found him on the floor of his cell, his cellmate crouching over him starting CPR.
Staff used multiple doses of Narcan in an attempt to revive him. But he died at the hospital.
When asked if prison staff had reason to think Thoan may have been using fentanyl, heroin or some other drug, DeFreece said it's "not uncommon" for that to occur in the prison.
Responding with Narcan has become standard procedure for an unresponsive inmate, on the off-chance it was drugs, she said.
But it hasn't always been administered so quickly.
In fact, the delay led a grand jury in Johnson County that reviewed Serrano-Dominguez's 2022 death last August to go so far as to recommend that initial emergency team responders carry Narcan on them so they can give it to an unresponsive inmate onsite before going to a medical facility, given the importance of it to be administered quickly.
In his case, 23 minutes passed before staff used the drug that can reverse the effects of an opioid overdose, despite his cellmate telling staff immediately he thought he was overdosing.
According to grand jury records, Serrano-Dominguez's cellmate called for help at 9:50 p.m. The emergency response team was called at 9:58 p.m., and it wasn't until 10:13 p.m. that anyone administered Narcan.
Toxicology reports from his autopsy showed he had lethal levels of fentanyl in his system.
"So is it a case that the medical personnel are the only ones that can respond with Narcan?" grand juror No. 3 asked.
Nebraska State Patrol Sgt. Stacie Lundgren said that while it was kept in the nursing facility at the prison, it's a nasal spray that anyone can administer.
How the drugs get inside
Johnson County Attorney Ben Beethe told the grand jury: "So the number one question that I have, and maybe some of you have, is how did he get the fentanyl?"
From working with the State Patrol, he said he's heard of people outside the prison putting drugs inside a football and throwing it over the fence, inmates circling it and it quickly disappearing, or prison staff bringing it in.
"We have caught some of them and prosecuted some of them. I assume the vast majority we probably don't catch," Beethe said.
Lundgren said corrections staff do the best they can.
"But these guys are really good at getting things in and out without people knowing or seeing," he said.
Lundgren said it's not unlike drug deals in our communities that happen covertly, sometimes right in front of people unknowingly.
"As much as we try to find out where that source is, sometimes we aren't able to. That said, in this case, we don't have any active leads at this time as to who brought that in and how he got it," he said.
Lundgren said one of the difficulties when investigating overdoses within state facilities is that, while the public perception is that prisons are controlled places, "the reality is that it is really not what you see on television."
He said inmates can wander from one housing unit to another and might have contact with a lot of people -- visitors, other inmates and staff -- in just a 24-hour period.
Only with extremely violent inmates and death-row inmates do they know absolutely who they had contact with, he said.
Tracking down a source or finding the contraband drugs first may be even more complicated in lower-level custody facilities, like in Wilbourn's case.
His methamphetamine overdose at the Community Corrections Center-Omaha, a community-based facility for inmates on work release, happened the night of Nov. 10, 2021.
According to an annual report of the Office of Inspector General of the Nebraska Correctional System, staff performing a routine check found his room in disarray and a large hole in the ceiling. They searched, eventually finding him on the roof. Omaha police helped coax him down.
Visibly under the influence, Wilbourn, 30, initially was taken to the Omaha Correctional Center nearby and kept under observation, but his health declined and he was taken by ambulance to an Omaha hospital, where he died two days later.
In a letter to inmates in February, Daniel Sloup, an assistant deputy director of classification, acknowledged that drug use, as well as walkaways, had increased at community corrections centers over the last several years, prompting them to make changes about who qualifies.
But it was an uptick in inmate deaths in general starting in 2020 that prompted Koebernick, the inspector general, to send a memorandum last July to the Legislature's Judiciary Committee members saying it was important to keep in mind that, while every death is a concern, these are still small numbers from a statistical perspective.
"We do not yet know if this is a trend or the result of one or more systemic issues, or if it is simply a coincidence," he said.
In 2020 there were 30 inmate deaths, the highest total on record. In the years that followed, there were 25 in 2021, 19 in 2022 and 27 in 2023, still far outpacing previous norms.
In the memo last summer, Koebernick pointed out that a majority of deaths each year are due to natural causes and that elderly prisoners continue to account for a significantly larger proportion of the prison population.
But he also addressed the matter of overdoses.
"NDCS, like other state correctional agencies, continues to struggle to keep drugs out of its facilities. This includes liquid intoxicants, which can be applied to paper and smuggled into facilities," Koebernick told senators in the memo. "A strip of paper smaller than a piece of gum is enough to cause a significant 'high' as well as potentially serious side effects, including overdose."
It led the prison to start photocopying most mail coming into the facilities, so the originals could be destroyed on the chance they contained drugs.
Koebernick said, anecdotally, he's heard it has made an impact on the quantity of drugs in the prison.
"Nonetheless, the incarcerated population is adept at finding other ways around institutional security. And unfortunately, they often do not know what substances they are using," he wrote.
At Thoan's grand jury, DeFreece, the State Patrol investigator, said they didn't find any drugs or paraphernalia in his cell, but that wasn't unusual.
"Typically with these, we rarely find evidence, especially drug paraphernalia or drugs. It's usually consumed or destroyed, flushed down the toilet or something like that," she said.
But, DeFreece said, Thoan had been heard the day before talking about being able to get a particularly potent strain of drugs in the yard. Investigators believe he took it in his cell that night.
His cellmate fell asleep listening to music he'd downloaded. When he woke up, he climbed down from the top bunk to find Thoan on the floor.
DeFreece said she suspects he'd overdosed on a drug similar to K2, a synthetic drug that can be soaked in paper and smoked, which is part of the reason investigators don't find evidence of it later.
She said staff worked backward to review security footage from the yard in an attempt to identify an exchange but couldn't find one.
Before the grand jury went to deliberate about whether anyone was criminally responsible for Thoan's death, Zieg told them his was a tougher case because they couldn't identify who gave him the drugs.
"It gets even more complicated to tie that to the actual death in this case because we don't know what actually caused the death," he said. "So there would be some legal difficulties there, I would say."