Nebraska Bill to Make Executions More Transparent Advances in Legislature

Nebraska​’s uni­cam­er­al leg­is­la­ture vot­ed on February 13, 2020 to advance a bill that would increase trans­paren­cy in the state’s exe­cu­tion process. LB 238, which would allow wit­ness­es to see the exe­cu­tion from the moment the pris­on­er enters the death cham­ber until the pris­on­er is declared dead or the exe­cu­tion is halt­ed, passed an ini­tial con­sid­er­a­tion by a 33 – 7 vote. It must pass a sec­ond vote in order to be sub­mit­ted to the governor.

The bill is a response to con­cerns about the state’s 2018 exe­cu­tion of Carey Dean Moore (pic­tured). Moore was the first per­son put to death in Nebraska in near­ly 21 years, and the state’s first exe­cu­tion by lethal injec­tion. Nebraska used a four-drug cock­tail that has nev­er been used in any oth­er state, con­sist­ing of diazepam (the seda­tive Valium), fen­tanyl cit­rate (an opi­oid painkiller), cisatracuri­um besy­late (a par­a­lyt­ic), and potas­si­um chlo­ride to stop the heart. 

During Moore’s 23-minute pro­ce­dure, which took much longer than lethal-injec­tion exe­cu­tions in oth­er states, wit­ness­es report­ed that Nebraska prison offi­cials dropped a cur­tain three times, block­ing their view of the exe­cu­tion. The third cur­tain drop occurred just after the final drug was admin­is­tered, pre­vent­ing the wit­ness­es from view­ing the 14-minute peri­od from the admin­is­tra­tion of that drug to the time Moore was declared dead. The Lincoln Journal-Herald report­ed that wit­ness­es observed ​“Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fin­gers grad­u­al­ly turned red and then pur­ple, and his eyes cracked open slight­ly. One wit­ness described his breath­ing as shal­low, then deep­er, then labored.”

Nebraska College of Law Professor Eric Berger, who stud­ies the death penal­ty, called the eye­wit­ness reports ​“some­what trou­bling.” ​“It’s cer­tain­ly pos­si­ble that every­thing went smooth­ly and humane­ly, but it’s also pos­si­ble that it didn’t.… We just don’t have enough infor­ma­tion to make that deter­mi­na­tion,” he said.

Some leg­is­la­tors intend to pro­pose an amend­ment to the trans­paren­cy bill that would spec­i­fy two law­mak­ers may wit­ness exe­cu­tions. Senator Laura Ebke, who was serv­ing as Judiciary Chairperson at the time of Moore’s exe­cu­tion, had request­ed that the Judiciary Committee’s legal coun­sel be allowed to view the exe­cu­tion. ​“I feel it is impor­tant,” she said, ​“for the Legislature to have a rep­re­sen­ta­tive present for pur­pos­es of observ­ing the pro­to­col and pro­ce­dure that will be uti­lized.” The Department of Correctional Services denied her request, say­ing that the wit­ness­es to the exe­cu­tion had already been select­ed. Senator Patty Pansing Brooks, the spon­sor of the trans­paren­cy bill, agreed that the leg­is­la­ture should have over­sight of exe­cu­tions. ​“I believe we are all com­plic­it in any exe­cu­tion that is improp­er­ly done,” she said.

Correctional offi­cials argued that draw­ing the cur­tain dur­ing the exe­cu­tion is nec­es­sary to pro­tect the iden­ti­ties of exe­cu­tion team mem­bers, but the bill allows team mem­bers to wear sur­gi­cal masks to obscure their identities.