Since the spring of 2015, Nebraska has been a heated battleground state for capital punishment. In May of 2015, the state legislature voted—over the governor’s veto—to make life without the possibility of parole the maximum punishment for a murder conviction. During the following summer, Governor John Ricketts formed a coalition, Nebraskans For The Death Penalty, to challenge the legislation through a ballot referendum in the 2016 election. The referendum sought to reinstate the death penalty as the maximum penalty. The governor’s coalition obtained the requisite number of signatures to put the referendum on the ballot, and on November 8, 2016, Nebraskan voters opted to reinstate the death penalty.
Two men, Jose Sandoval and Carey Dean Moore, had previously waived their appeals, making both men eligible for execution immediately after the death penalty was reinstated.
On November 9, 2017, the State notified Sandoval that it had the necessary drugs to carry out an execution. State execution procedures require the government to notify a death row prisoner of the execution protocol, including specific drugs and dosages, that the State intends to use sixty days before seeking an execution warrant against that particular prisoner. Nebraska notified Sandoval that the State intends to use Diazepam and Fentanyl Citrate as anesthetics, Cisatracurium Besylate as a paralytic agent, and potassium chloride to induce cardiac arrest.
Sandoval surprised the State on December 4, 2017, by revoking his volunteer status and joining a suit as the named plaintiff to challenge the constitutionality of the ballot referendum. All of the prisoners on Nebraska’s death row except Arthur Gales, Jeff Hessler, and Carey Dean Moore joined Sandoval as plaintiffs. Gales, Hessler, and Moore were involuntarily joined as indispensible party defendants. The American Civil Liberties Union and pro bono counsel from O’Melveny & Myers represents the plaintiffs as a group.
The State responded to Sandoval’s suit by filing a motion to dismiss for failure to state a claim, which the district court granted on February 12, 2018. The court’s decision was based on a finding that the plaintiffs have equally serviceable remedies to challenge the constitutionality of the ballot referendum through Nebraska’s post-conviction process and through a suit against the Secretary of State to preclude the Secretary from placing a referendum on the ballot. The court separately found that the plaintiffs failed to support their claims that Governor Ricketts had violated the Separation of Powers clause of the Nebraska Constitution or that the initial 2015 legislation to revoke capital punishment had taken effect. The district court noted that the Legislature does not have the power to commute existing death sentences to life without parole.
Sandoval filed an appeal of the district court’s order, which the Nebraska Court of Appeals transferred to the Nebraska Supreme Court. The opening brief is due on July 2, 2018.
Meanwhile, on January 19, 2018, the State notified the other volunteer, Carey Dean Moore, of its intent to use the same four-drug cocktail of diazepam, fentanyl citrate, cisatracurium besylate, and potassium chloride to execute Moore. Moore has maintained his decision to waive any appeals.
The ACLU has brought a separate suit, with the help of pro bono counsel from Orrick, challenging Nebraska’s execution protocol through in two forums. The first challenge is a notification sent to the United States Drug Enforcement Agency on March 12, 2018, that the Nebraska Department of Corrections does not possess the proper DEA license to administer controlled substances such as diazepam and fentanyl during an execution and that the Nebraska State Penitentiary does not meet the statutory requirements of the Controlled Substances Act. The second challenge is a lawsuit filed by Rev. Stephen Griffith and state senator Ernie Chambers under the Nebraska Administrative Procedures Act on March 26, 2018. The ACLU and Orrick hope these challenges will lead the State to spare Moore.