Nebraska policy on who witnesses state executions, and what they must see, under closer scrutiny

Following Nebraska’s first execution of a death-row inmate in 21 years, some legislators are calling for statutory revisions that would change who witnesses the death and what they are able to see. “If the state is going to do something as serious as taking a person’s life, we need to be transparent,” Nebraska Sen. Patty Pansing Brooks says.
Carey Dean Moore was put to death on Aug. 14 for the murder of two cabdrivers nearly 40 years ago. He died by lethal injection, the first time that Nebraska used this method of execution. (In 2008, the state Supreme Court ruled electrocution to be unconstitutional.) The four-drug combination used by Nebraska had never been used by any other state: a sedative, an opioid pain killer (fentanyl) and a paralyzing drug, followed by potassium chloride, a drug that causes heart failure.

Because of the way the execution was carried out, witnesses were not able to see how Moore reacted to the final drug that killed him. Curtains were closed for a time before Moore was declared dead and then for a period after his death. Corrections officials told the Omaha World-Herald that the curtains were drawn to protect the identity of the team that conducted the execution.

But Pansing Brooks intends to introduce legislation next year requiring that “witnesses who are there need to be able to [see] the entire execution,” including how the person reacts to the drug mix.
Under current Nebraska law, the list of witnesses to an execution includes a member of the clergy and three other people selected by the convicted person, as well as three people representing the victim or victims. In addition, the Department of Correctional Services chooses up to six witnesses, two of whom must be from the media.
Pansing Brooks would like to specify in law that certain witnesses — some mix of state officials — must be present.
Three years ago, the Unicameral Legislature passed legislation to repeal the death penalty, with enough support to override a gubernatorial veto. But supporters of the death penalty, including the governor, quickly went to work on a ballot measure to overturn this legislative ban. A referendum was placed on the November 2016 ballot, and Nebraskans overwhelmingly nullified the Legislature’s repeal.
In August, an international pharmaceutical company sued the state of Nebraska over the use of its drugs for lethal injection. It said that two of its drugs were being used in the execution, and told a federal judge that it had not authorized the sale of these drugs for lethal injection and that they were obtained illegally. The judge ruled against the company because it could not prove that it manufactured both drugs.
One lingering question about the future of the death penalty in Nebraska, though, is whether state officials will be able to secure the drugs needed for execution, according to the Omaha World-Herald.
Stateline Midwest: October 20183.82 MB