The Nebraska Supreme Court sided with state officials who adopted the new protocol in 2017 to allow the state to resume executions. Death penalty opponents, including state Sen. Ernie Chambers, alleged in their lawsuit that officials created the protocol without following state laws and procedures. The court declined to weigh in on those arguments, ruling instead that Chambers and the Rev. Stephen Griffith didn't have the necessary legal standing to bring the case.
"We find that the district court correctly dismissed the action without reaching the merits, because plaintiffs lack standing under (state law) to bring the claims they have asserted," Justice Jonathan Papik wrote in the opinion.
The American Civil Liberties Union of Nebraska, which represented Chambers and Griffith in the lawsuit, noted that the ruling didn't address their core arguments about the protocol. "Today's decision leaves many important questions unanswered about the Department of Corrections' hasty and secretive process for establishing new lethal injection protocols," said Danielle Conrad, the group's executive director. "While we respect that Nebraskans of goodwill hold different viewpoints on the death penalty, these and other concerns about transparency, accountability and fairness will persist beyond this case."
Chambers and Griffith say the corrections department didn't give them access to "working copies" of the proposed protocol or estimates of how much it would cost. Without that information, they contend, they were denied the opportunity to give "informed testimony" during a public hearing on the protocol.
A spokeswoman for the Nebraska attorney general's office, which represented the corrections department, said state officials were pleased with the ruling. The new protocol gives the state corrections director broad authority to decide which drugs to use in executions and how to obtain them. Nebraska's previous protocol called for three specific drugs, including some that were unavailable to the state.
The lawsuit asked a district court judge to halt all planned executions because the new protocol was invalid. But Lancaster County District Court Judge Lori Maret ruled that the plaintiffs didn't have standing to bring the lawsuit because they aren't on death row and the protocol change didn't infringe their legal rights. Chambers and Griffith appealed the case to the Nebraska Supreme Court.
Nebraska and other states have found it increasingly difficult to carry out executions because many drug companies don't want their products used to kill inmates and are refusing to sell them to correctional departments.
Nebraska officials responded by refusing to identify their supplier, despite releasing such information in the past under the state's open-record laws. The new protocol allowed them to obtain other drugs that were more readily available, and those drugs were used to execute inmate Carey Dean Moore in August 2018 — the state's first execution in 21 years.
It's unlikely that the state will carry out another execution anytime soon. Last year, Corrections Director Scott Frakes acknowledged in a court filing that his agency won't be able to buy any more of the drugs that were used to execute Moore because the state's supplier is no longer willing to sell them.
Frakes said he contacted at least 40 potential suppliers in six states, and that no one else agreed to provide the drug. Some of the drugs used in Moore's execution have since expired.
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