Changes proposed to execution protocol

Members of the Judiciary Committee heard testimony March 7 on a bill that would increase transparency in death penalty executions.

LB238, introduced by Lincoln Sen. Patty Pansing Brooks, would require that witnesses present for an execution be allowed to view the proceeding continuously from the time the convicted person enters the execution chamber to the time he or she is declared dead or the execution is halted.

The Aug. 14, 2018, execution of Carey Dean Moore has raised numerous questions about the state’s execution protocol, Pansing Brooks said, including a span of 14 minutes during which Nebraska Department of Correctional Services officials prohibited legally required observers from viewing the procedure.

“LB238 is not about whether the death penalty is right or wrong, it is about whether we have proper government accountability and transparency in carrying out this grave and somber event as required by law,” she said. “It’s clear as day to me that we didn’t have transparency in the last execution and we failed to live up to national and international transparency standards.”

The bill would prohibit any attempt to obstruct, shield or impede the witnesses’ view of the execution proceedings. The persons administering the execution protocol could, upon request, wear masks or otherwise conceal their personal identity from the witnesses.

Finally, LB238 would require the Executive Board of the Legislative Council to appoint two members of the Legislature to witness the execution process.

Robert Dunham, executive director of the Death Penalty Information Center, spoke in support of the bill. Of the 17 states that carried out 246 lethal injection executions between Jan. 1, 2011, and Aug. 31, 2018, all withheld at least some information about the execution process, he said.

This “retreat into secrecy” has occurred at the same time that states have conducted some of the most problematic executions in American history, Dunham said.

“States have moved to lethal injection and away from more overtly violent methods of execution in an effort to make the process seem more humane, but as the drugs of choice became less available and states became more desperate in seeking other execution drugs, they chose drugs that were inappropriate,” he said. “As a result of that, there have been a number of executions that have not gone according to plan or, to the extent that they did go according to plan, the plan itself was highly problematic.”

Also supporting the bill was Amy Miller, legal director of the ACLU of Nebraska. Not only does the public have a right to know [about executions] via the news media and the other witnesses in the room, she said, but the Legislature as a separate branch of government also should have significant oversight of the execution process.

“We’re looking at a department of corrections that has been riddled with scandal after scandal, both in our prison conditions and in the execution question, and they’re asking you to trust them and to not ask more questions,” Miller said. “That is the exact opposite of where we should be.”

No opposition testimony was given and the committee took no immediate action on the bill.