LINCOLN, Neb – The American Civil Liberties Union of Nebraska today announced a lawsuit challenging the state’s execution protocol, asserting that state officials hastily developed new execution procedures in violation of Nebraska’s Administrative Procedure Act. The lawsuit was filed on behalf of State Sen. Ernie Chambers and Rev. Stephen Griffith.
The lawsuit, filed in Lancaster County District Court, alleges that the state of Nebraska in January 2017 approved a flawed execution protocol developed by the state Department of Corrections Services without adequate public review and in violation of the due process clause of the Nebraska state Constitution. The plaintiffs seek an injunction blocking the execution procedure from moving forward until the state enacts regulations in compliance with the APA and which provide adequate opportunity for public input and review.
“The NDCS promulgated this very important protocol, upon which lives literally depend, on a single try and without making any drafts or working copies at all, and without consulting any public or private experts,” the lawsuit states.
The challenge to the execution protocol comes at a crucial time for Nebraska, which is preparing for its first possible executions in more than 20 years. The new procedures include major revisions to the drugs to be used in executions, adopted in a cloak of secrecy without input on whether they pose the possibility of a cruel and inhumane death for condemned inmates.
Nebraska is one of a number of states that have rushed to install new execution procedures in violation of their respective state administrative rules.
The ACLU of Nebraska has already presented serious evidence that state prison officials may have violated federal law in how they obtain execution drugs. Last week, Sen. Chambers, a plaintiff in today’s lawsuit, filed a formal complaint with the state Legislature asserting that the lethal injection protocol is unconstitutional.
“Anything the government does in the name of, and on behalf of, the people should be done in plain sight,” Sen. Chambers said. “The rulemaking process was flawed and didn’t allow the public to comment with the required background information. The state needs to follow the law and that’s especially true when it’s the death penalty, which erodes the notion of human dignity and civilization.”
Added Rev. Griffith, who was prevented from participating in the rulemaking process: “I tried in good faith to participate in the legal process. I asked for the records to prepare for the public hearing, and I went down and testified as a concerned citizen. But how can there be a true public debate when there is no transparency? I want to be clear: I believe no method of execution is acceptable. But if there is going to be a government process that ends human lives, it must be visible and not hidden in secrecy.”
“Nebraskans of goodwill hold different viewpoints on the death penalty,” said Danielle Conrad, executive director of the ACLU of Nebraska. “However, Nebraskans across the political spectrum agree that when the state seeks to implement its most grave function it must do so within the bounds of the law. Nebraska has a proud tradition of open government and public participation in the rulemaking process is critical to honoring that tradition and informing the process with the voices of experts and everyday citizens. Unfortunately, that didn’t happen when the state updated its execution protocol. This is yet another significant failure on the part of state officials in their misguided attempts to rush forward with a broken death penalty system.”
The ACLU legal team is led by Amy Miller, legal director for the ACLU of Nebraska. The global law firm Orrick, Herrington & Sutcliffe is serving as co-counsel on a pro bono basis.
“We are proud to partner with the ACLU on such an important case that rests on ensuring the state of Nebraska follows the rule of law when the stakes are life and death,” said Rene Kathawala, Pro Bono Counsel for Orrick. “This lawsuit is designed to make sure the state does follow the rule of law. We simply want the state to take a step back and consider the consequences of developing a procedure in haste and that is clearly flawed.”
The legal team also sent a letter to Attorney General Doug Peterson regarding any requests for an execution warrant for Mr. Carey Dean Moore. A copy of the complaint and letter to the Attorney General are attached and will also be posted online.
To view a brief troubled history of Nebraska’s lethal injection activities: https://www.aclunebraska.org/en/campaigns/tinkering-machinery-death
For over 50 years in Nebraska, the ACLU has worked in courts, legislatures, and communities to protect the constitutional and individual rights of all people. With a nationwide network of offices and millions of members and supporters, we take up the toughest civil liberties fights. Beyond one person, party, or side — we the people dare to create a more perfect union. Learn more at aclunebraska.org.