Nebraska

Nebraska

Pressed on Execution Practices, Nebraska Obstructs Release of Information

As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."

Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”  On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier.  The state has appealed the order. 

Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death

The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”

Nebraska Proposes Untried Lethal-Injection Combination as Nevada Court Halts Execution With Similar Drugs

As Nebraska announced its intention to use a never-before-tried four-drug execution combination featuring the opiod pain medication fentanyl and the paralytic drug cisatracurium, a Nevada judge issued a stay of execution that put off the nation's first attempted execution using those drugs. On November 9, the Nebraska Department of Correctional Services provided notice to death-row prisoner Jose Sandoval that it intends to execute him using a combination of the drugs diazepam (Valium), fentanyl citrate, cisatracurium besylate, and potassium chloride. Later that day, Clark County (Las Vegas) District Judge Jennifer Togliatti granted a request by lawyers for the Nevada Department of Corrections to stay the scheduled November 14 execution of Scott Dozier to permit them to appeal her order directing the state to remove cisatracurium from its also untried execution protocol of diazepam, fentanyl, and the paralytic. Dozier, who has waived his appeals and asked to be executed, is only contesting the state's method of execution. The judge issued her order after considering medical evidence that the cisatracurium could cause Dozier to experience "air hunger" and suffocate to death, while masking signs that he was conscious and suffering during the execution. Doctors testified that a paralytic drug would be unnecessary if the other two drugs, fentanyl and diazepam, were administered properly. In staying the execution to permit Nevada to appeal to the state supreme court, Judge Togliatti said: "They're going to have to be the court to make that determination that we as a state are OK with a paralytic." Nebraska law requires the state to give a prison notice of the drugs to be used in the execution at least sixty days in advance of issuing a death warrant. The state attorney general's office has indicated it will ask the Nebraska Supreme Court to issue a warrant after that time has passed. State Senator Ernie Chambers, one of the leaders of the Nebraska legislature's repeal of the state's death-penalty statute and its override of Governor Pete Ricketts's veto of the measure, criticized the notice as politically motivated and called the timing of its issuance "suspicious." The notice was issued almost a year to the day after the voters brought back the death-penalty law in a voter iniative bankrolled by Rickett, and as the governor gears up for a re-election campaign in 2018. Sandoval is currently unrepresented. The Nebraska Commission on Public Advocacy, which typically represents death-row prisoners, cannot represent Sandoval because it represented other defendants in the case. But the commission's executive director, Jeffery Pickens, said Sandoval "has to be given some sort of opportunity to challenge [the drug protocol]."

Nebraska Death Penalty Challenge Unresolved, as Defendant Fires Lawyers, Pleads Guilty

A Nebraska trial judge has permitted Patrick Schroeder (pictured)—whose lawyers from the Nebraska Commission on Public Advocacy had challenged the constitutionality of the state's death penalty—to fire his lawyers, withdraw the challenge, and plead guilty to first-degree murder. The court deferred until August 22 whether to also permit Schroeder to waive his right to have a jury decide whether aggravating circumstance exist that could make him eligible for the death penalty. The court reappointed public defenders Sarah Newell and Todd Lancaster to represent Schroeder in the penalty-phase proceedings. Schroeder was serving a life sentence for a prior murder when he choked Terry Berry, his cellmate at the Tecumseh State Correctional Institution, to death in April. Authorities found a ripped-up note in the trash can of their cell, which read:  “You really need to get Terry Berry out of my cell before he gets hurt.” In June, Schroeder’s lawyers had filed a motion to bar the death penalty in his case, arguing that its application in Nebraska is unconstitutionally arbitrary and that the state's sentencing procedures violate the U.S. Supreme Court's 2016 decision in Hurst v. Florida requiring that juries find all facts necessary to impose the death penalty. The motion argued that Nebraska's law is inconsistently applied geographically, with only four of the state's 93 counties imposing death sentences, and is racially discriminatory. Eight of the nine men sent to death row in the last 15 years in the state have been defendants of color. Schroeder's lawyers also asserted that Nebraska's three-judge sentencing panel violated Hurst because it required that judges, rather than a jury, determine whether aggravating circumstances outweigh mitigating circumstances and justify imposing the death penalty. Only a handful of states permit judicial death sentencing without a prior unanimous jury finding that aggravating circumstances outweigh mitigation. Courts in Florida and Delaware have already struck down those states' statutes, holding that the weighing process is a factfinding that must be made by a jury. Alabama's appeal courts overturned a trial court ruling that its judicial factfinding was unconstitutional. The motion also had challenged the state's execution protocol as an unlawful delegation of legislative powers that gives prison directors overly broad discretion to determine the types and quantities of drugs to be used in the lethal-injection process. Schroeder’s waiver leaves the constitutionality of Nebraska's sentencing statute unresolved. The Nebraska legislature repealed the state's death penalty in 2015 over the veto of Governor Pete Ricketts, but Nebraska voters restored the statute in a 2016 referendum. The state last carried out an execution in 1997. [UPDATE: The Nebraska Supreme Court has agreed to review an appeal by brought by death-row prisoner Marco Torres to determine whether his challenge to the constitutionality of the state's death-penalty statute under Hust v. Florida was timely raised and can be decided by the courts.]

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

Voters Oust Prosecutors in Outlier Death Penalty Counties, Retain Governors Who Halted Executions

Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act. 

Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions

Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.” 

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