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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Nebraska's new lethal injection protocol comes under fire at hearing

Nebraska, the good life
Opponents of the death penalty predicted Friday that a new lethal injection protocol being sought by Gov. Pete Ricketts will mire the state in more lawsuits rather than revive capital punishment.

"This is only going to trigger more litigation that the state will not win," said Spike Eickholt of the American Civil Liberties Union of Nebraska. Eickholt was among 20 people who testified during a public hearing Friday concerning a new execution protocol drawn up by the Ricketts administration to make it easier to obtain the necessary drugs for an execution.

All but 2 of those testifying criticized the proposal. It was lambasted as violating Nebraska's public meeting laws, allowing unlicensed "pharmaceutical chemists" to participate and permitting the purchase of drugs from secret and shady sources.

"It looks to me that a (Corrections Department) director could buy drugs in a back alley," said Dr. Gregg Wright of Lincoln, a former state health director.

Friday's hearing was the 1st step in reviving Nebraska's stalled death penalty. The state hasn't carried out an execution in 19 years, and it has not been able to obtain the necessary drugs to carry out a lethal injection execution.

2 people testified in support of the new lethal injection protocol, and both were leaders in the campaign that overturned at the ballot box in November the 2015 repeal of capital punishment by the Nebraska Legislature.

1 supporter, Pierce County Sheriff Rick Eberhardt, who gathered hundreds of signatures for the successful referendum drive, said that voters last month delivered a "work order" to state leaders.

"They are instructing our leaders to find a workable way to carry out a death sentence," Eberhardt said.

Ricketts, in a statement after the hearing, called Friday's session "1 step toward enacting the will of the people of Nebraska on the death penalty."

He added that his administration would review comments from the hearing before finalizing the proposed regulation.

The new protocol would give the state corrections director wide latitude to choose the type and source of drugs being used, and to keep that information confidential.

The secrecy provisions brought objections from a variety of groups and individuals, including Media of Nebraska, the ACLU, the state's Tea Party and Nebraska's most ardent opponent of the death penalty, State Sen. Ernie Chambers of Omaha.

"Anything that the government does on behalf of the people should be done in plain sight," Chambers said.

He vowed to introduce another bill to repeal the death penalty when the State Legislature begins its 2017 session next week, and promised it would be better drafted than the "slapdash, loosey-goosey" proposal for the new lethal injection protocol.

Nebraska's current protocol was adopted in 2009 after the state switched from the electric chair to lethal injection. It calls for the use of 3 drugs.

But the state has been thwarted in its attempt to obtain them, contributing to the Legislature's vote in 2015 to repeal the death penalty.

Shawn Renner of Media of Nebraska, which represents the state's major newspapers and broadcasters, said the new protocol was directly contrary to the state's public records laws by allowing the state corrections director to pick and choose what records will be released and which ones will be withheld.

Renner called the proposal "illegal" and predicted it would be overturned in court.

Others said that the lack of transparency could lead to the use of impure and suspect drugs, which could result in botched executions or courts tossing out lethal injection as unconstitutionally cruel and unusual punishment.

There have been 47 botched executions since 1982, according to a study by University of Colorado professor Michael Radelet, and 35 of those involved lethal injection.

More than one testifier pointed out that an open process was needed, given Nebraska's track record in obtaining lethal injection drugs. In 2015 the state lost $54,000 when it purchased 2 lethal injection drugs from a broker in India, then was blocked from importing the drugs.

Joni Cover of the Nebraska Pharmacists Association said that while the association was not taking a position supporting or opposing capital punishment, it was opposing the new protocol as having multiple flaws.

She asked that a requirement to have a "pharmaceutical chemist' as part of the execution team be stricken. Such chemists are unlicensed and lack the education or legal authority to prepare, compound or administer drugs, Cover said. In addition, the state corrections director lacks the authority to write a medical order for lethal injection drugs, she said, and the secrecy surrounding the drugs could put Nebraska in violation of state and federal laws about how such drugs should be handled.

10 inmates sit on Nebraska's death row.

It may take several weeks before state corrections officials decide if the proposed protocol should be approved or revised.

The attorney general must also review and OK the rules, and the governor must sign them, before they take effect.

Source: The Smithville Herald, December 31, 2016

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