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.”

(Joe Duggan, Hearing delayed in attor­ney gen­er­al’s death penal­ty law­suit against the Nebraska Legislature, Omaha World-Herald, May 5, 2018; Editorial: Nebraska offi­cials need to pro­vide answers to death penal­ty inquiries, Omaha World-Herald, May 3, 2018; Editorial: State must hold itself account­able before any killers are put to death, Lincoln Journal-Star, April 29, 2018; JoAnne Young, Lawmakers weigh sub­poe­na of pris­ons direc­tor over death penal­ty ques­tions, Lincoln Journal Star, April 20, 2018.) See Lethal Injection and Secrecy.

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