LINCOLN — The execution of Nebraska’s longest-serving death row inmate last week left many wondering what’s next for capital punishment in a state where it hadn’t been used in more than 20 years.
Will officials quickly try to carry out what would be Nebraska’s second lethal injection? Or will decades pass again before another Nebraska inmate pays the ultimate price for murder?
It’s certain that the state won’t see another execution before one of the four lethal injection drugs expires at the end of this month.
“I think it will be very unlikely they could do another execution this year,” said Jeff Pickens, director of the Nebraska Commission on Public Advocacy, a state office that represents indigent clients in serious felony cases.
Beyond that, it’s harder to predict.
But consider that almost seven months had passed from the day prison officials notified Carey Dean Moore that they had the drugs until he was put to death Aug. 14 at the Nebraska State Penitentiary. And Moore wanted to die, meaning that an inmate who legally fought to stay alive might have been able to cause some delays.
Gov. Pete Ricketts, a major backer of capital punishment, wants to see a “functioning” death penalty continue. His corrections director will soon take up the search to replace expiring drugs, if he hasn’t already.
“Capital punishment is functioning in Nebraska because the people of the state overwhelmingly voted to keep it in 2016,” said Taylor Gage, the governor’s spokesman, referring to a referendum vote the governor financially supported. “We expect it will continue to function moving forward.”
Still, the march toward an execution in Nebraska is intended to be methodical.
Attorney General Doug Peterson can’t ask the Nebraska Supreme Court for a death warrant to execute a condemned inmate unless prison officials have the means to carry it out. Nor can he ask the court to execute an inmate whose sentence is under a court-ordered stay of execution.
Just how soon another execution might take place depends largely on the state’s ability to get more drugs and finding a death row inmate who is just about out of legal options.
In the days before Moore’s execution, two drug companies filed federal lawsuits seeking to block the state from using drugs the companies suspected were made in their factories. In an affidavit submitted to fight the lawsuits, Scott Frakes, director of the Nebraska Department of Correctional Services, said the pharmacy that supplied the drugs is now unwilling to sell more to Nebraska.
“I do not, at present nor at any time in the future, have an alternative supplier for any of the four substances to be administered for execution ,” Frakes said in a document submitted Aug. 9.
Frakes also said that he contacted at least 40 suppliers and six states before he found the drugs the state used last week.
The state employed a four-drug combination to execute Moore, who killed Omaha cabdrivers Reuel Van Ness and Maynard Helgeland five days apart in 1979. The drugs were: diazepam (commonly called Valium), fentanyl, cisatracurium and potassium chloride.
The state’s supply of potassium chloride expires Aug. 31, and the cisatracurium expires Oct. 31. The supply of fentanyl expires July 31, and the diazepam expires Sept. 30, both in 2019.
But after last week’s execution, Dawn-Renee Smith, chief of staff for Corrections, said the department will resume the search for a new supplier.
“Our responsibility is to carry out the order of the court, which includes continuing to pursue procuring the necessary substances.”
Nebraska has shown that it can carry out executions in relatively quick succession. In a two-year span starting in 1996, the state executed three inmates using the electric chair. Prior to that, it had been 37 years since the state used the death penalty.
J. Kirk Brown was with the Attorney General’s Office in those years, and he played a primary role in litigating the death penalty cases. He said if the attorney general doesn’t push the cases toward the point of seeking a death warrant, they can languish for years.
“The first question is, who’s next?” he said.
The answer might be Jose Sandoval or John Lotter.
If the state has suitable drugs, corrections officials must provide written notice to an inmate listing the substances it intends to use to execute him. Sixty days after the inmate receives the notice, the Attorney General’s Office can ask for a death warrant.
Moore actually was the second inmate given such a notice by the state in the past year. The first was in November, when Corrections listed the same four drugs in a notification to Sandoval, who led two other gunmen into a Norfolk bank in 2002 and shot five people to death.
At the time, Sandoval had no pending appeals and was under no stays of execution. But since then, he has filed a post-conviction motion in state court raising a new legal challenge. He also joined seven other death row inmates in a lawsuit claiming that the 2015 legislative repeal of the death penalty changed their sentences to life in prison. A district court judge dismissed the lawsuit, but the inmates are appealing.
With Moore’s execution, the longest-serving death row inmate in the state is now Lotter, sentenced to death for killing three people in a Humboldt farmhouse in 1993. The case inspired the film “Boys Don’t Cry.”
Lotter has spent 22 years on death row, exhausting most of his appeals along the way. But he currently has an appeal pending before the Nebraska Supreme Court that challenges the state’s system of allowing juries to decide guilt while allowing a three-judge panel to hand down the sentence in capital cases.
Lotter’s claim was rejected by a lower court. The Supreme Court has scheduled oral arguments in the case for Aug. 30.
And the next day, one of the drugs used to execute Moore will expire.