Sunday, May 31, 2015

Crisis in the Cornhusker State

Let's review.

  • December 2, 1997:     Robert E. Williams killed in Nebraska's electric chair for the rape and murder of Catherine Brooks 20 years earlier.  
  • February 8, 2008:     Nebraska Supreme Court declares the electric chair is cruel and unusual punishment and therefore unconstitutional.  Nobody has been executed in Nebraska since Williams.
  • September 1, 2009:     Nebraska legislature purports to fix the problem, changes the state's execution method to lethal injection with the traditional three-drug sequence.  Nobody has been executed in Nebraska since Williams.
  • December 2013:     Nebraska's supply of thiopental expires.  Nobody has been executed in Nebraska since Williams.
  • May 20, 2015:     Nebraska's unicameral legislature votes 32-15 (two members not present) to abolish the death penalty sending the bill to Governor Pete Ricketts who promises to veto it and will fight like hell to ensure that the leg doesn't override his veto.  An override would take 30 votes.
  • May 27, 2015:     This time everyone shows up to vote.  It's tense.  Lots of speeches.  Lots of reference to the Bible.  Jesus is invoked as favoring the death penalty and as opposing it.  Then the roll call (which is actually electronic but still suspenseful).   
  • May 27, 2015:     (It's worth 2 entries.) Override 30-19.  No votes to spare, but they don't need them. Nebraska is now the 18th state without the death penalty.  32 to go.  (Don't hold your breath.)

It's been four days now.  
Doug Peterson, the Attorney General, says that Nebraska is free to kill the 11 guys already on death row.  And it's damn well going to.
Governor Ricketts says he agrees.  And, by the way, he's paid $54,000 out of the state treasury to acquire an updated supply of the necessary drugs.  Line 'em up.  Strap 'em down.

But what about abolition?  Didn't the law just change?  Sure.  And here's what it says on the point:
It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.
Which means what, exactly?  It is law or hope?  Does it count?  As my old torts professor is law school used to say when anyone asked a question,
How the hell should I know?
I ain't no Nebraska lawyer. 

But there's this.  That $54,000 for killin' drugs?  Nope, can't bring 'em into the country.  So says the FDA.  Can't use 'em.  Sorry, boys.  To which Nebraska says, 
Fuck you.
More precisely.
After being informed of the FDA’s statement, James Foster, a spokesman for the Nebraska Department of Corrections, said the agency has been advised by the attorney general that its actions are “proper and legal.”
Oh, sure, in 2013 a federal court ordered the FDA to block importation of these drugs.  And sure a federal appeals court upheld that ruling.  But hey, we're Nebraska (says Nebraska).
Attorney General Doug Peterson has said the 2013 ruling does not apply to Nebraska because the state was not party to the case, which involved death row inmates in Arizona, California and Tennessee.
Except that the order was to the FDA to block importation, not to Arizona, California, and Tennessee to not use the drugs.  Which makes a real difference.
On the other hand, it's almost 18 years since Nebraska last killed anyone.  And the Governor is chomping at the bit.  

Rule of Law? Law of Rule?  You be the judge.

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