With Drugs Expiring and Lawsuits Pending, Nebraska Prosecutors Seek to Expedite Execution

Facing an August 2018 expi­ra­tion date for two of the drugs in Nebraska​’s exper­i­men­tal exe­cu­tion pro­to­col, state Attorney General Douglas Peterson (pic­tured) has asked the Nebraska Supreme Court to expe­dite con­sid­er­a­tion of the pros­e­cu­tor’s request to set a July exe­cu­tion date for con­demned pris­on­er Carey Dean Moore. The attor­ney gen­er­al has peti­tioned the court to sched­ule Moore’s exe­cu­tion for July 10 ​“or alter­na­tive­ly for a date in mid-July,” despite the pen­den­cy of sev­er­al law­suits, which will not be resolved before August, that chal­lenge var­i­ous aspects of the state’s author­i­ty and abil­i­ty to car­ry out executions. 

Nebraska intends to use a four-drug exe­cu­tion pro­to­col fea­tur­ing three drugs — the opi­od pain med­ica­tion fen­tanyl, the seda­tive val­i­um, and the par­a­lyt­ic drug cisatracuri­um — that have nev­er before been used in an exe­cu­tion, fol­lowed by the heart-stop­ping drug potas­si­um chlo­ride. Potassium chlo­ride has been described as feel­ing like liq­uid fire if admin­is­tered to a per­son who has not been adequately anesthetized. 

Several chal­lenges to the state’s admin­is­tra­tion of the death penal­ty that have been filed by the ACLU of Nebraska are cur­rent­ly before the courts. These include a case on appeal before the Nebraska Supreme Court argu­ing that Governor Pete Ricketts and oth­er state offi­cials ​“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 enact­ed by the state leg­is­la­ture over the gov­er­nor’s veto in 2015; and a sec­ond law­suit chal­leng­ing the state’s lack of trans­paren­cy sur­round­ing exe­cu­tion drugs and team mem­bers, which is cur­rent­ly await­ing a tri­al-court rul­ing. The state Department of Corrections recent­ly released some doc­u­ments regard­ing exe­cu­tion team train­ing in response to a pub­lic records request by the ACLU, but refused to pro­vide doc­u­ments indi­cat­ing whether and to what extent exe­cu­tion team mem­bers had spe­cial­ized expe­ri­ence or train­ing in intra­venous-access pro­ce­dures or any doc­u­ments relat­ing to cor­re­spon­dence with doc­tors or experts regard­ing lethal injection. 

ACLU of Nebraska Legal Director Amy Miller said that the doc­u­ments released by the state pro­vide ​“no ade­quate assur­ance that we would be look­ing at a smooth, well-con­duct­ed exe­cu­tion,” and remarked that “[t]he veil of secre­cy that has dropped on all mat­ters relat­ing to the death penal­ty is very con­cern­ing.” Nebraska has nev­er car­ried out an exe­cu­tion using lethal injection.

Moore, who was sen­tenced to death in 1980, is Nebraska’s longest incar­cer­at­ed death-row pris­on­er. At tri­al, he waived his right to a jury and pre­sent­ed no evi­dence in his defense. He recent­ly fired his cur­rent appoint­ed coun­sel and has asked to be exe­cut­ed. In a state­ment released in April, ACLU of Nebraska’s Executive Director Danielle Conrad said, ​“it is pre­cise­ly because [Moore] is not fight­ing that our insti­tu­tions bear extra respon­si­bil­i­ty to check them­selves by ensur­ing that the laws are fol­lowed and that an unlaw­ful and poten­tial­ly cru­el and unusu­al exe­cu­tion does not take place.”