LINCOLN — The ACLU of Nebraska filed another legal challenge to the state’s death penalty on Monday, claiming that a new execution protocol was adopted “hastily, secretly and without following required procedures” in 2017.
The civil rights organization, which had a recent challenge to capital punishment dismissed, asked a Lancaster County District Court to block any executions until the state enacts a protocol that has proper public input and review, and is in compliance with the state’s Administrative Procedures Act.
“The (Nebraska Department of Correctional Services) 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. That, the ACLU maintained, violates the due process clause of the Nebraska Constitution.
The new challenge comes as Nebraska is preparing for its first executions in more than two decades — and as the ACLU steps up efforts to stop them.
Gov. Pete Ricketts, who helped finance the 2016 voter referendum that restored the death penalty, called the lawsuit “simply another frivolous attempt by the ACLU to subvert the will of the people of Nebraska.”
The state in recent months has informed two convicted killers, Jose Sandoval and Carey Dean Moore, that the necessary lethal injection drugs had been obtained for their executions.
In response, death penalty opponents have filed a handful of challenges to the state’s procurement of the new drugs, as well as to the process by which the execution protocol was changed 14 months ago.
Recently, the ACLU questioned the 2016 voter referendum that reinstated capital punishment. The lawsuit was dismissed, but the organization has pledged to appeal.
Two weeks ago, the ACLU asked the federal Drug Enforcement Administration to formally investigate how the state obtained a new supply of four execution drugs.
Then, last week, State Sen. Ernie Chambers of Omaha asked the Legislature to conduct a formal hearing on whether the state illegally obtained its new supply of lethal injection drugs and whether the Corrections Department properly changed its execution protocol in 2017 amid problems obtaining the necessary drugs.
Monday’s lawsuit was filed on behalf of Chambers, a longtime foe of the death penalty, and the Rev. Stephen Griffith.
Griffith, a retired Methodist minister, said he went to Corrections headquarters in December 2016 to review records held by the agency about a proposed change in the execution protocol. But, the lawsuit alleges, those records were incomplete, thwarting Griffith’s preparation and participation in a rule-making hearing held 10 days later, on Dec. 30, 2016.
Twenty people testified at that public hearing, with foes promising more lawsuits. A month later, Corrections adopted the new protocol, which was designed to give the state corrections director wide latitude to choose the type and source of lethal injection drugs used and to keep that information confidential.