Nebraska officials are forging ahead with plans to execute the state’s longest-serving death-row inmate without disclosing where they obtained lethal injection drugs, despite a judge’s order this week to identify their supplier.
The Nebraska attorney general appealed the judge’s ruling on Tuesday as it pushes in a separate case to set a July 10 execution date for Carey Dean Moore.
State officials are scrambling to execute Moore before their supply of a key execution drug expires in August, while simultaneously fighting a legal battle that could force them to reveal who gave them the drugs. Gov. Pete Ricketts’ administration also has sued the Legislature to block a subpoena that would force the state corrections director to testify about Nebraska’s execution protocol.
Ricketts and Attorney General Doug Peterson have said the state is long overdue to execute Moore, 60, who has spent nearly four decades on death row for the 1979 shooting deaths of two Omaha cab drivers.
But a leading death penalty critic contends state officials want to execute an inmate before the November election and before they’re forced to disclose how they obtained their drugs.
“If they got these drugs in a legitimate way from a legitimate provider, then all they’d have to do is ask for another batch,” said Sen. Ernie Chambers, of Omaha. “If everything was legitimate, the supplier would say, ‘Sure, coming right up.'”
Chambers said the request to have the Nebraska Supreme Court set an execution date is politically motivated, given promises by the Republican governor and attorney general to revive capital punishment and their pending re-election bids this year. Ricketts and Peterson have denied the allegations, saying they’re trying to carry out the will of voters.
Nebraska’s last execution took place in 1997, using the electric chair, and the state has failed to carry out any others because of legal challenges and lack of access to the required drugs. Lawmakers abolished capital punishment in 2015, overriding Ricketts’ veto during his first year in office. But voters reinstated it the following year through a petition drive partially financed by the governor.
On Monday, a judge ordered the Department of Correctional Services to release public records that could identify the state’s supplier, including invoices, photographs of the drugs’ packaging, and correspondence between state officials and the supplier. Judge Jodi Nelson also ruled that the state can withhold any documents that directly identify members of Nebraska’s execution team, whose identities are confidential under state law.
The order came in response to lawsuits filed by the American Civil Liberties Union of Nebraska and the state’s two largest newspapers, the Omaha World-Herald and Lincoln Journal Star, after state prison officials denied their requests for the records.
“We appreciate that Nebraskans of goodwill hold divergent viewpoints on the death penalty, but the citizens’ referendum did not grant permission to state officials to cloak the death penalty in secrecy,” said
Danielle Conrad, the ACLU of Nebraska’s executive director. The order to release the records “ensures transparency and accountability as the state seeks to carry out its most grave function.”
Corrections department officials have traditionally released such records without objection, and a bill that would have given them the legal authority to withhold them stalled in the Legislature last year. The Nebraska attorney general’s office argued that releasing the records could eventually lead to identifying an execution team member.
In April 2017, The Associated Press used a records request to identify and contact the manufacturer of one of Nebraska’s lethal injection drugs to see if the company was aware of how the department planned to use them.
A spokesman said the company never wanted its drugs to be used in executions and only sold it to Nebraska corrections officials because one of its distributors made a mistake. Fresenius Kabi spokesman Matt Kuhn said the company discovered the error through an internal audit and asked state officials to return the drug, but the state refused.
Suzanne Gage, a spokeswoman for Attorney General Doug Peterson, said state attorneys were pleased that the state doesn’t have to disclose records that identify execution team members.
“We respectfully disagree with the court’s analysis on the remaining records and plan to appeal,” she said.
Spokespeople for Ricketts and the Department of Correctional Services did not immediately return messages seeking comment.
Nebraska’s situation is unique among states with the death penalty because lawmakers have never given the department permission to withhold such records, said Robert Dunham, executive director of the Washington-based Death Penalty Information Center. Other state legislatures have enacted so-called shield laws to keep their suppliers’ identities confidential. Supporters say shield laws protect suppliers from intimidation and harassment by death penalty opponents, but Dunham described the practice as troubling.
“This is the type of questionable activity that undermines public confidence in the institution of capital punishment,” said Dunham, whose group has criticized the way states carry out executions. “We shouldn’t be hiding this information from the public when they have an interest in making sure the process is carried out fairly.”