Nebraska’s capital punishment scheme has been the subject of ongoing challenges in recent years, following legislative repeal in 2015 and voter reinstatement only a year later. As we wrote in 2015, Nebraska’s bipartisan repeal of the death penalty was especially notable: it was the first conservative legislature to abolish the death penalty since 1973. Governor Pete Ricketts first vetoed the repeal bill and then, once the Legislature overrode his veto, helped initiate, organize, and fund Nebraskans for the Death Penalty’s successful petition drive demanding a ballot initiative on the repeal. A referendum on the measure eventually appeared on Nebraska’s November 2016 ballot, with Nebraskans for the Death Penalty mounting a “Repeal the Repeal” campaign in the lead-up to the election.
Death penalty opponents also took action, filing a lawsuit citing Governor Ricketts’ lack of transparency in the petition process. The lawsuit sought to invalidate the petition based on the governor's failure to disclose his involvement as a sponsor. The suit alleged that, together with his parents, Governor Ricketts contributed a third of the total donations used to fund the petition drive. The suit was dismissed by Lancaster County District Judge Lori Maret in February 2016. The death penalty measure then passed, with Nebraskans voting to reinstate capital punishment by a 61-39 margin.
The reinstatement of the death penalty left lingering questions about the effect of the legislative repeal on Nebraska’s death row prisoners. In a 2017 lawsuit, the ACLU of Nebraska argued that, because the governor’s involvement in the ballot initiative was improper, the legislative abolition was actually the law. The ACLU alternately argued that prisoners’ death sentences were, at the time of the Legislature’s actions, converted to life sentences, and the voters did not subsequently change those individual sentences. Lancaster County District Judge John Colborn dismissed the lawsuit in February 2018.
With the lawsuit still pending on appeal in the Nebraska Supreme Court, the state carried out its first execution in 21 years. In August 2018, Nebraska executed Carey Dean Moore, becoming the first state in the country to experiment with using the powerful opioid fentanyl as a lethal injection drug. In January 2019, the Nebraska Supreme Court dismissed the ACLU’s appeals and suggested that the prisoners could take up their claims individually through motions for postconviction relief. ACLU Nebraska Executive Director Danielle Conrad said, "While we respect that Nebraskans of good will hold different viewpoints on the death penalty, these and other concerns about transparency, accountability and fairness will persist beyond this case. These problems will continue to drain resources from our crisis-riddled prison system, courts and legislature until we rejoin our sister states as they continue to turn away from the death penalty.”
The ACLU has brought additional lawsuits against the state, including a challenge to the lack of transparency in the state’s protocols for obtaining lethal injection drugs and carrying out executions. In December 2017, the ACLU and Nebraska’s two largest newspapers sued the Nebraska Department of Corrections to obtain information about the supplier of the state’s most recent batch of lethal injection drugs. The following June, Lancaster County District Judge Jodi Nelson ordered that all records be made public except for those directly identifying members of the execution team. That decision is currently pending appeal before the Nebraska Supreme Court.
In the wake of the death penalty’s reinstatement, the Nebraska legislature has attempted to address concerns about the capital punishment system. Last year, the Judiciary Committee ordered LR406, an interim study to examine statutory adoption of the ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases in Nebraska. Project Director Emily Olson-Gault submitted written testimony and answered questions from members of the Committee.
The latest measure to be introduced, LB238, attempts to eliminate some of the secrecy surrounding executions by allowing witnesses to view the entire execution from the start to finish. The bill was introduced by Lincoln Senator Patty Pansing Brooks after witnesses of Moore’s execution were cut off from viewing the entire procedure. Death Penalty Information Center Executive Director Robert Dunham testified before the committee about the lack of transparency in executions. "This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history," said Dunham.
No groups testified in opposition to the bill, and no action was immediately taken.