Five Questions you've asked about Nebraska’s Death Penalty

Sections from the current death penalty protocol. (Photo Illustration by Bill Kelly, NET News)
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January 13, 2017 - 6:35am

After showing overwhelming support for the death penalty in November’s election, many Nebraskans expected executions of those on death row would get underway promptly.

It’s not that easy.


Gov. Pete Ricketts and the Department of Correctional Services created new rules and procedures required to carry out the process of lethal injection. A public hearing was held on the last day of 2016. It appears doubtful there will be many significant changes. The governor’s signature on the final draft is expected soon.

Here are some of the questions often asked about the next steps needed to proceed with a legal execution.

When will Nebraska schedule its next execution?

There is no public speculation among state officials about when the next execution will take place in Nebraska. The state’s attorney general told NET News there are too many steps in the process to project ahead. That includes likely legal challenges to the proposed revised protocols in general and new appeals put forward by individual death row inmates.

“The first logical step is to get the rules approved and implemented,” Nebraska Attorney General Doug Peterson told NET News.

When the rules are signed by the governor, it will be up to the attorney general to take the first step: select which case to present to the Nebraska Supreme Court to request a death warrant. The justices review the merits of the case and, if advanced, set a date for the execution.

Who will be the next person executed?

 

Cary Dean Moore

 

John Lotter

 

Jose Sandevol

(All photos via Dept of Correctional Services)

If the date is uncertain then you can expect that identifying which of the men on death row will be chosen first is another topic of speculation which state officials avoid.

Peterson said when the protocols are enacted “the most logical and legal approach is to examine where each one of the death row inmates stand with regards to their appeals and whether their appeals have been exhausted.”

That criteria shortens the likely list considerably. Cary Dean Moore, sentenced to death in for the 1979 murders of two Omaha cab drivers, has spent the longest time on death row.

Over the decades Moore repeatedly found ways to successfully delay his death sentence. While it’s expected, the new protocols will provide several avenues for new appeals, Moore would provide the state with its most expedient option.

The death by cancer of cult-leader and double murderer Michael Ryan in 2016 makes the second likely choice for the attorney general less clear.

Two other inmates have exhausted their state and federal appeals according to the attorney general’s office

It has been 30 years since John Lotter took part in the triple murder of transgendered Teena Brandon and two of her friends. Lotter’s insistence that his role in the murder does not raise to the level of a capital crime may further delay his execution.

Jose Sandoval has been on death row for nearly 14 years. He was convicted of killing five people at a Norfolk bank.

A fourth less likely candidate would be Raymond Mata. He tortured and murdered a 3-year-old boy in Scotts Bluff County in 2000. One of his successful appeals led to the state replacing the electric chair with execution by lethal injection.

How will the method of execution differ?

Lethal injection remains the only legal method of execution in Nebraska since it replaced the electric chair in 2009. However, the specially-equipped room for the procedure, built at an estimated cost of $25,000, has never been used.

The most significant change is in the type of drugs used for the execution. The current protocol restricts corrections to a specific three-drug process. Those drugs proved impossible to obtain legally. New procedures proposed by the Department of Correctional Services gives the corrections director the decision on what drugs to use. The only criteria, whether a single substance or a mixture, is that it meets a constitutional requirement to avoid “cruel and unusual punishment.”

Will the state be able to get the drugs needed for a lethal injection?


Bonus Question 6: Why are licensed pharmacists upset with the new policy?

One interesting flank in the opposition to the proposed protocols came from the Nebraska Pharmacists Association, representing licensed pharmacists in the state. At the December 2016 public hearing, chief executive director Joni Cover testified the person given responsibility for the execution drugs in the new protocol is listed as pharmaceutical chemist. She said no such job title receiving training or accreditation exists in Nebraska state law.

Cover and other pharmacists read the protocols to say it would allow a member of the execution team without education in pharmacology to help obtain, prepare and administer drugs to the inmate during an execution. They asked the section be removed.

The pharmacist’s concern may be of importance, as it provides attorneys for death row inmates and those opposing the death penalty a significant new line of defense in the courts.

Pharmacists and other members of the medical community often decline to participate in the execution process, viewing it to conflict with their ethical charge to “first do no harm.”

Whether the state can find a provider is not yet known, but corrections officials have hinted they may have one willing to sell. Corrections officials have also consulted with other states that have successfully obtained drugs used in executions through confidential providers.

By not specifying a drug in the proposed protocols the state also has greater flexibility in finding a provider. The proposed protocols state corrections officials can get the drugs through “any appropriate source, including pharmaceutical or chemical compounding.”

Unlike drug companies that mass produce their pharmaceuticals, compounding pharmacies prepare medications in small doses based on the specifications of a client or doctor.

States allowing lethal injection have found drug companies increasingly reluctant to sell their products when they are being used in executions. Nebraska ran afoul of the U.S. Food and Drug Administration by using a broker in India as a source for its drugs. Ultimately the drug's “use by” date expired as challenges to their use extended for months.

Why is there an extra effort to keep parts of the process confidential?

States successfully advancing death penalty convictions find keeping the process discrete limits avenues for opponents to challenge methods used.

Gov. Ricketts said during a news conference the changes were only about giving “the state flexibility to carry out the execution.”

"We're really not changing anything about confidentiality," Ricketts said.

Prison officials would no longer be bound to specific types or numbers of lethal substances. It would be up to the corrections director to decide what drugs to use and in what doses. The director also could opt for a single drug, as long as it rendered the inmate unconscious and resulted in death “without the unnecessary and wanton infliction of pain.”

Sixty days prior to the execution the condemned inmate of the type drug to be used. This would provide defense attorneys a very narrow window to prepare any objections to the specific drug or compound.

An attorney representing newspapers and broadcasters in the state (including NET News) and another from the Nebraska Chapter of the American Civil Liberties Union sharply disagreed.

Danielle Conrad, executive director of the ACLU of Nebraska, said in a prepared statement “this process would implicate grave constitutional, legal and policy questions.”

During the public hearing attorney Shawn Renner, representing a group of the state’s newspapers and broadcasters, called the proposal “illegal” and claimed it ran contrary to the intent of the goal of open and transparent government.

Attorney General Peterson told NET News he found no aspect of the protocols in violation of the open records law.

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