After briefly repealing its death penalty only to have it reinstated by voters, Nebraska has resumed an effort to acquire drugs needed to carry out executions for the 1st time in 20 years, just as judges consider whether to increase death row by 2 men who between them killed 8 people.
Nebraska is among the few states where those facing capital punishment have a remarkably good shot at ultimately dying of natural causes. Since 2001, four death row inmates have died of natural causes while awaiting execution, including one who died last year of brain cancer.
Of the 10 people currently on Nebraska's death row, Carey Dean Moore has waited 37 years for his murder convictions in the 1979 shooting deaths of 2 Omaha cab drivers. He is among at least 24 of the nearly 3,000 death row inmates in the U.S. to have been sentenced in 1980 or earlier.
"It's harder to carry out executions than many state officials like to admit," University of Nebraska-Lincoln law professor Eric Berger said. "The state moved to lethal injection (in 2009) in the hopes of being able to start carrying out executions again, but one thing after another has gotten in the way of the state's being able to do it."
That has included the state's trouble obtaining the drugs it needs for lethal injections, said Berger, who worked with death penalty opponents during the recent ballot campaign that saw Nebraska's death penalty reinstated in November. The state paid more than $54,000 for a hard-to-find lethal injection drug nearly 2 years ago to a dealer based in India, but never received it because the federal government blocked the shipment over questions of the drug's legality.
And then there are the multiple appeals filed by most death row inmates, Berg said.
"Given that the state hasn't been able to get over those hurdles even once in the last 20 years, it should make us skeptical that it'll be able to do so consistently in the future," Berg said. "The one thing that is certain is that the state's efforts will take a lot of time and consume a lot of taxpayer dollars."
Former Nebraska Attorney General Don Stenberg, who served as co-chair of the petition drive that led to the reinstatement of the state's death penalty, rejects the argument that enforcing the death penalty is substantially more expensive than life behind bars. Those with life sentences file about as many appeals as those facing death, he said.
He also pointed to recent measures that could ease the way to again carrying out executions. One was a recently-enacted executive measure that would allow the corrections department to execute inmates with a single drug rather than multiple drugs, an action also taken by several other states. Another is a bill being considered by lawmakers that would keep secret the suppliers of the state's lethal injection drugs. Fifteen other states have enacted similar so-called shield laws.
Enacting such a secrecy law will invariably lead to lawsuits and more death row appeals, said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit organization that opposes capital punishment and tracks the issue.
"These secrecy provisions increasingly challenge the legitimacy of the death penalty," Dunham said. "People like public policy to be conducted in the open."
Stenberg, now the state treasurer, said he heard the same doubts about the state's ability to carry out executions when he was the state's top prosecutor. When he was first elected in 1990, "the most recent execution at that time had been in 1959 with Charles Starkweather," he recalled.
He went on to oversee 3 executions during his 12-year tenure. He was able to do so, he said, by asking for an execution date whenever he could.
"It would force the defendants to take the next legal step available, pushing the process along," he said.
Nebraska currently has no executions scheduled, the Nebraska Department of Correctional Services said.
It remains to be seen whether 2 men convicted in capital murder cases in Omaha will join Nebraska's death row.
Nikko Jenkins was convicted in 2014 of killing 4 people in 3 separate attacks in and around Omaha over the span of 10 days, just weeks after he had been released from prison. Anthony Garcia is a former medical doctor who was convicted in October of the revenge killings of 4 people, including the 11-year-old son of a faculty member he blamed in part for his firing 15 years ago from an Omaha medical school's pathology residency program.
3-judge panels have determined that aggravating factors make both men eligible for the death penalty. The judges must now determine whether mitigating factors - such as childhood abuse or impaired mental capacity - exist that might spare them death and see them sentenced to life in prison. Their sentences are expected later this year.
Douglas County Attorney Don Kleine, who prosecuted the Jenkins and Garcia cases, has said he's been frustrated by the inability of the state to carry out an execution since Robert Williams died in the electric chair in 1997. But he believes the death penalty is needed in cases where children, officers or multiple people have been killed.
"I believe the death penalty is certainly merited in these cases," he said.
Source: Associated Press, February 12, 2017
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