Nebraska Legislature Passes, Governor Vetoes Execution Transparency Bill

Nebraska Governor Pete Ricketts has vetoed a bill that would have increased trans­paren­cy in the state’s exe­cu­tion process. LB 238, which passed the state’s uni­cam­er­al leg­is­la­ture on August 13, 2020 by a vote of 27 – 10 with 12 mem­bers present but not vot­ing, would have allowed 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. 

In his August 17 veto mes­sage to the leg­is­la­ture, Ricketts claimed that the bill would have ​“add[ed] addi­tion­al bur­dens to the process of car­ry­ing out the death penal­ty in Nebraska” and ​“would man­date changes to the [state’s] cur­rent exe­cu­tion pro­to­col.” He said state law pro­tects the iden­ti­ty of exe­cu­tion employ­ees and that “[w]earing a mask or dis­guise in an attempt to con­ceal their iden­ti­ty could impede nec­es­sary pro­ce­dures if the staff mem­ber’s eye­sight is hin­dered or blocked.” Wearing per­son­al pro­tec­tive equip­ment dur­ing the course of an exe­cu­tion ​“would make a mock­ery of the exe­cu­tion and show a com­plete lack of respect for the inmate, the inmate’s fam­i­ly, and for fam­i­ly of the vic­tim,” Ricketts wrote.

The bill’s spon­sor, Senator Patty Pansing Brooks, called Ricketts’ action ​“high­ly dis­turb­ing” and said ​“it fun­da­men­tal­ly betrays the public’s right to account­abil­i­ty and trans­paren­cy in our State gov­ern­ment.” In a state­ment released in response to the veto, she wrote: ​“LB238 adds no ​‘addi­tion­al bur­dens,’ as spu­ri­ous­ly claimed by the Governor.” All it would have done, she said, is ​“pre­vent[ ] the Department of Corrections from once again clos­ing the cur­tain on an exe­cu­tion and block­ing the view of wit­ness­es who are statu­to­ri­ly allowed to be present.”

She said Ricketts’ com­plaints about dis­clos­ing the iden­ti­ty of exe­cu­tion team mem­bers was ​“bla­tant­ly bogus because under cur­rent law and LB238, the executioner’s iden­ti­ty was and would have remained protected.”

ACLU of Nebraska Executive Director Danielle Conrad said Governor Ricketts’ veto ​“was con­trary to … Nebraska[’s] proud tra­di­tion of open gov­ern­ment.” She said Ricketts’ action ​“will allow state offi­cials to oper­ate in the shad­ows, car­ry­ing out the death penal­ty with­out ensur­ing that wit­ness­es can observe this grave and irrev­o­ca­ble act. Bottom line, the peo­ple have a right to know how the state takes a person’s life.”

The exe­cu­tion trans­paren­cy bill was a bipar­ti­san response to con­cerns about Nebraska’s 2018 exe­cu­tion of Carey Dean Moore, the state’s first exe­cu­tion by lethal injec­tion. The exe­cu­tion employed 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, 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 wit­ness­es observed that ​“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, said at the time that the eye­wit­ness reports were ​“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.

Pansing Brooks said the bill was nec­es­sary because, as a result of the cur­tain drops, “[w]e have no way of know­ing whether that exe­cu­tion was botched. In the gov­ern­men­t’s most pow­er­ful and solemn act, the tak­ing of a human life, we have an oblig­a­tion to ensure it is car­ried out with­in the high­est of stan­dards. So today’s veto can be tak­en as the inten­tion to con­tin­ue to car­ry out this solemn act with­out over­sight, trans­paren­cy and accountability.”

“The process of tak­ing a life is not the gov­ern­men­t’s lit­tle secret to pro­tect them­selves and hide from the pub­lic,” she said.

During leg­isla­tive hear­ings, cor­rec­tion­al offi­cials had sug­gest­ed that draw­ing the cur­tain dur­ing the exe­cu­tion was nec­es­sary to pro­tect the iden­ti­ties of exe­cu­tion team mem­bers. The bill sought to address that con­cern by per­mit­ting team mem­bers to wear sur­gi­cal masks to obscure their identities.

“Wearing a sur­gi­cal mask doesn’t seem to pre­vent brain sur­geons from see­ing what they are doing when they are oper­at­ing or make surg­eries any less dig­ni­fied,” Death Penalty Information Center Executive Director Robert Dunham said. ​“It’s hard to imag­ine how wear­ing a mask would inter­fere with the por­tions of an exe­cu­tion Nebraska is cur­rent­ly hid­ing from the public.” 

The Nebraska leg­isla­tive ses­sion end­ed August 14, pro­vid­ing law­mak­ers no oppor­tu­ni­ty to attempt to over­ride the governor’s veto.