|Nebraska Governor Pete Ricketts|
After his state abolishes the death penalty, Governor Pete Ricketts vows to apply it to the ten inmates still on death row.
“A punitive impulse has controlled criminal justice in America for almost half a century,” Columbia law professor Robert Ferguson writes in his searing book, Inferno: An Anatomy of American Punishment. Surveying law, history, philosophy, and literature, Ferguson grapples with Americans’s peculiar commitment to punishment (rather than, say, rehabilitation, justice, or utility) as the aim of our justice system. “American attitudes toward legal punishment have entered a fantasy land of inconsistencies so intense that there seems to be no possible return to reality,” Ferguson told me recently.
And that was even before Governor Pete Ricketts of Nebraska threatened to begin executing prisoners more or less out of spite.
On May 27, a coalition of Democrats and Republicans in the Nebraska Legislature approved LB268, which abolishes the state’s death penalty. Ricketts had vetoed the measure, but the legislature overrode his veto. Ricketts called for a voter referendum to overturn the repeal; then he said that the state would execute the ten prisoners currently under sentence of death anyway, using sodium thiopental imported from India.* Meanwhile, Senator Bill Kinter of the unicameral legislature sought to explain his support for executions by posting a photo of a beheaded woman on his Facebook page.
Let’s peel back the layers of lawlessness. Ricketts argues that the legislature cannot reduce a criminal sentence imposed by a court. Under Article IV Section 13 of the constitution, he’s probably right about the sentences. But by law, an execution also requires a death warrant, and in Nebraska only the state supreme court can issue one. The attorney general, Doug Peterson, can petition the court to set new execution dates, but it’s unlikely to do so before the law goes into effect in September.
There’s a second level: After it takes effect, LB268 doesn’t suspend lethal injection, as a court decision might; it repeals every provision that allows executions of any kind. After September, those condemned prisoners may still be formally under sentence of death; but no court will have jurisdiction to issue a death warrant, and no official will have authority to carry one out. What will Ricketts do then?
Layer three is the bootleg sodium thiopental. Ricketts says the state has ordered and paid for (but not yet received) this drug, part of the standard three-drug “cocktail” used since the 1980s for lethal injection, from a distributor named Harris Pharma, run by Chris Harris. The state bought some thiopental through Harris Pharma once before. The federal Drug Enforcement Administration seized that shipment because the company isn’t approved to sell it. (Harris had gotten it from a Swiss company by lying about what he was going to do with it.) Now the Food and Drug Administration is under a 2013 order from the D.C. Circuit to seize all sodium thiopental coming into the United States from unregistered dealers like Harris Pharma.
Source: The Atlantic, Garrett Epps, June 5, 2015
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