Nebraska inmate facing death penalty files motion contesting its constitutionality

Patrick Schroeder

TECUMSEH, Neb. — A recent change in lethal injection procedure intended to enable Nebraska to carry out executions has been challenged by an inmate facing a potential death sentence.

Concerns over the new drug protocol are among the 11 arguments in a motion filed this week by attorneys for Patrick Schroeder, who seeks to have Nebraska’s death penalty law declared unconstitutional.

Schroeder, who is already serving a life sentence for murder, now faces the death penalty for allegedly choking to death his cellmate, Terry Berry Jr., on April 15 inside a special management unit cell at the Tecumseh State Prison.

He was scheduled to be arraigned Tuesday in Johnson County District Court and enter a plea.

Instead, District Judge Vicky Johnson scheduled a July 28 hearing on Schroeder’s motion to overturn the death penalty.

“Our society can no longer kill to show that killing is wrong,” stated the motion to quash, filed by defense attorneys Todd Lancaster and Sarah Newell with the Nebraska Commission on Public Advocacy.

Johnson County Attorney Rick Smith, who is prosecuting the case with the Nebraska Attorney General’s Office, declined to comment.

“We will argue it at the hearing,” he said.

Among issues raised by Schroeder in the 32-page motion:

• The death penalty in Nebraska is racially discriminatory, considering that only one of the nine men sent to death row since the law was amended in 2002 is white. Five are Hispanic and three are black.
• The death penalty is applied unevenly based upon geography. Since 2002, all death penalty cases have originated in four of Nebraska’s 93 counties: Douglas, Madison, Scotts Bluff and Hall.
• Nebraska’s death penalty procedure requires juries to decide the aggravating factors necessary to impose death, but it requires a three-judge panel to weigh the mitigating factors in a defendant’s favor. Such a two-step process that limits the jury’s role is similar to one used in Florida that was found unconstitutional by the U.S. Supreme Court in 2016.
• Evolving standards of decency in a “mature society” have made the carrying out of executions increasingly rare in the U.S. Just 10 states are responsible for 83 percent of the 1,442 executions since 1976, the motion stated. Last year, the 20 total executions carried out were in five of the 31 states with capital punishment. Nebraska has not executed an inmate since 1997, when the method was the electric chair.
• The highest courts in the states and the nation have previously banned the execution of juveniles, the mentally ill and the developmentally disabled. They also have prohibited methods once commonly used as cruel and unusual punishment.

“The rejection of the nooses, bullets, gas and electricity signaled not only the discomfort with the method of execution, but with the death penalty itself,” the motion stated.

Though Schroeder has not been convicted of the prison homicide, let alone sentenced, the motion was filed at this early stage to properly preserve the issues for appeal.

The death penalty challenge comes several months after voters reinstated capital punishment. More than 60 percent of those who cast ballots in November voted to reverse the Legislature’s repeal of the death penalty in 2015.

In an effort to create a viable death penalty procedure in the wake of that vote, the Nebraska Department of Correctional Services changed the lethal injection protocol earlier this year. That change is under attack by Schroeder.

Under the former protocol, inmates were to be put to death with injections of three substances in a specific order. But obtaining some of the drugs specified in the protocol became increasingly difficult for prison officials.

The new protocol gives the prisons director wide latitude in deciding the types and quantities of drugs to be used. He also may opt to use a single drug, as long as it first causes the inmate to lose consciousness.

Schroeder’s motion argues that the Legislature has unlawfully delegated its lawmaking authority to the prisons director to decide what drugs to use.

The motion also challenges the death penalty statutes for giving too little guidance as to when the penalty should be sought and applied. As a result, individual county attorneys decide who will be put to death in a manner that is “arbitrary and capricious” in violation of the U.S. Constitution.

“The decision to file aggravating circumstances can be affected by the legal experience of the prosecutor, the size and resources of the particular county, any prejudice or bias of the prosecutor, the political ambition of the prosecutor or other political circumstances,” the motion stated.

Source: Omaha World Herald, Paul Hammel / World-Herald Bureau, June 21, 2017

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