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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

As Nebraska Death Penalty Case Advances, Pace Of Appeals May Increase

Nebraska state line
2018 will be a busy year for everyone involved in advancing and opposing Nebraska's death penalty.

After months of quiet following the 2015 referendum vote re-instating capital punishment, a set of developments have kept attorneys busy in response to developments.

Here's a rundown of current developments.

Death Row vs. Governor Ricketts


In the 1st week of 2018 attorneys for both sides of the issue faced off in court. A judge will decide whether to delay or even halt the executions of all 11 men currently sentenced to die by lethal injection in Nebraska.

The lawsuit, filed by the Nebraska Chapter of the American Civil Liberties Union (ACLU) on behalf of 11 men facing the death penalty, challenges the legality of the 2016 petition drive and ballot referendum re-instituting the death penalty.

In that election 60 % of Nebraskans voted to over-turn the legislature's decision to end capital punishment.

Attorneys from the ACLU claims the Governor improperly put the petition drive in-motion and then spent hundreds of thousands of dollars to finance the campaign, stating in the original complaint the petition drive was "an unlawful exercise of power by the executive branch." State Treasurer Don Stenberg also played an active role in the initiative.

The ACLU claims elected officials, while in office, should not have the power to campaign against laws passed by the Legislative branch, that it should have been organized by citizens outside of government. They claim the governor and treasurer in the Executive Branch violated a separation of powers.

Stenberg's attorney, J.L. Spray labeled the argument "ridiculous."

Ricketts had previously dismissed the latest legal challenge as "frivolous" and "a waste of taxpayer dollars."

At the hearing an attorneys representing those who administered pro-death penalty campaign, argued to have the case thrown out immediately.

They claim, in part, if anyone had objections to how the petition drive was organized it should have been done so before the election

The ACLU responded the timing is appropriate for its clients: those facing the death penalty. The lawsuit was filed after the state gave notice to Jose Sandoval he was the next person to be issued a death warrant.

Jose Sandoval awaits a death warrant


Jose Sandoval
Near the end of 2017 the Nebraska Attorney General sent Sandoval a letter listing the 4 drugs that the state intends to use to kill him by way of lethal injection. 

The notice is the 1st step in the process the state must follow to advance the execution of a person convicted of capital murder.

He is 1 of 3 men on death row convicted of murdering 5 people during a 2002 bank robbery in Norfolk.

The state could take the next step, filing a death warrant with the Nebraska Supreme Court, at any time.

The state apparently selected Sandoval, in part, because he did not have any appeals pending as the end of the year approached. After the state gave notice of its intent, he filed a separate appeal late last year.

The appeal, filed in Madison County District Court, claims in 2015 the state legislature altered the death sentences at the time of its historic vote to end capital punishment. Although voters later elected to stick with capital punishment, the lawsuit argues those inmates on death row got a life sentence.

The court filing argues "the State has ping-ponged Mr. Sandoval from death to life and to death again. His individual fate became hostage to an ongoing political contest between the Legislature, the Governor, and the voters."

The same argument appears in the later lawsuit filed in Lancaster County on behalf of the other's sentenced to die.

Judge John Colburn must decide if the state obligated to hold hearings to resentence those inmates back to a death sentence or if the case is without merit.

Pro-death penalty attorneys argued at the January hearing it represented a big stretch in the intent in laws governing sentencing.


Is Nebraska ready for lethal injection?


The state claims to be prepared, having obtained the needed drugs for the execution of Sandoval. There are 4 drugs planned for use in the sequence.

The protocol revealed by the Nebraska Department of Correctional Services (NDCS) in November uses a sequence of 4 drugs in the specially designed room at the Nebraska State Penitentiary.

2 are muscle relaxants in regular use by doctors.

Gathering signatures against the Nebraska death penalty repeal
Diazepam, commonly known as Valium, induces drowsiness and reduces muscle spasms and Fentanyl Citrate is employed by anesthesiologists for surgery.

A 3rd drug, Cisatracurium induces paralysis in the body. The 4th and fatal drug is potassium chloride.

It appears no executions have ever been carried out using this combination of drugs.

The prison system in state of Nevada developed this drug cocktail. There are objections from the convicted man scheduled to be the 1st to die using the procedure. There have been concerns raised by death penalty opponents about the drug that brings on paralysis, fearing if something was amiss and the earlier drugs brought on tortuous pain, the paralysis would make the subject unable to respond.

A judge has delayed its use indefinitely.

The company who manufactures and sells 2 of those drugs...Pfizer... demanded Nebraska return the drugs they sold to the state, claiming they were never intended to be used cause the death of a person. According to the Omaha World Herald, neither NDCS or the drug company would say if the drugs were returned.

The state has provided limited information about the origin of the drugs and the process used to obtain them. The ACLU and the state's 2 largest newspapers have sued, believing there are files and data being withheld which should be available to the public.

TIMELINE: Nebraska & Lethal Injection


December 3, 1997: Robert Williams is the last person to be executed in Nebraska using the electric chair.

February 8, 2008: Nebraska Supreme Court rules death by electrocution is "cruel and unusual" and thus unconstitutional.

May 28, 2009: Governor David Heineman signs bill replacing the electric chair with lethal injection

January 24, 2010: Pharmaceutical company Hospira, the only U.S. based maker of sodium pentathol, announces it will no longer sell the drug for use as a lethal injection drug.

February 10, 2010: Governor Heineman approves lethal-injection protocol.

July 7, 2010: New facility to be used for lethal injection executions is completed.

January 7, 2011: Corrections officials obtain sodium thiopental from India-based supplier.

January 21, 2011: Corrections announces it is "prepared to carry out...executions."

April 21, 2011: Nebraska Supreme Court sets execution date for Carey Dean Moore.

April 2011: U.S. Drug Enforcement Administration informs corrections officials they did not have a license to import drug and it can not be used in executions.

May 25, 2011: Moore execution postponed as Nebraska Supreme Court considers whether the source of lethal injection drugs should be considered.

June 29, 2011: Nebraska gets a proper import license from DEA.

October 25, 2011: Nebraska obtains fresh supply of sodium thiopental.

January 11, 2012: Nebraska Supreme Court issues execution warrant for Michael Ryan.

February 22, 2012: Nebraska Supreme Court grants Ryan a stay of execution while issues over drug acquisition are reviewed in Richardson District Court. Judge later rejects argument.

August 2012: 1st batch of sodium thiopental expires.

October 4, 2013: Attorney General Bruning says Nebraska needs a new lethal injection protocol.

December 2013: Last of lethal injection drugs expire. State unable to carry out executions.

April 18, 2014: Nebraska Supreme Court denies all of Ryan's requests to delay execution.

May 25, 2015: Ryan dies of cancer before new protocol is set and supplies of execution drugs located.

May 27, 2015: The Nebraska Legislature overrides a veto of Governor Pete Ricketts, removing the death penalty from state law.

November 8, 2016: In a referendum supported by Ricketts, 60% of Nebraska voters elect to keep the death penalty and lethal injection as state law.

January 26, 2017: Ricketts signs new, more flexible execution protocol, allowing acquisition of necessary drugs to resume.

November 9, 2017: Attorney General informs Jose Sandoval the state is prepared to use a four-drug protocol, signaling a death warrant could be issued in 2018. Legal challenges begin.

Source: netnebraska.org, Bill Kelly, January 11, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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