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The Oklahoma Legal Group Blog

Nebraska Abolishes Death Penalty as Supreme Court Considers Oklahoma Case

Adam Banner - Wednesday, June 03, 2015

One week ago, Nebraska became the 19th state to abolish the death penalty. The state's decision came roughly a month before the United States Supreme Court is expected to release its decision about the constitutionality of the lethal injection protocol in Oklahoma.

The state's legislators had approved a measure to abolish the death penalty earlier this year, but Nebraska Governor Pete Ricketts vetoed it. By a narrow margin, the state legislature then voted to override the governor's veto.

Although the ban is official now, it seems to largely be a moral victory--the state hasn't executed anyone since 1997, anyway. According to The Atlantic, Nebraska became in 2009 the last state to adopt lethal injection as a means of execution. Since that time, a shortage of lethal injection drugs--pentobarbital, for one--has made it virtually impossible for the state to use the adopted lethal injection protocol to execute death row inmates.

Opponents of the death penalty in Nebraska said that the state did not ban capital punishment because it could not procure the drugs needed to carry out the procedure, but admitted that the inability to actually carry out an execution within the guidelines of existing law helped fuel the measure to abolish the death penalty.

Russell Berman, senior associate editor for The Atlantic, wonders if "Nebraska will be an isolated example of a state that fumbled its ultimate punishment into extinction, or the first in a wave." Certainly, it is not the only state that has been "fumbling" with acquiring death penalty drugs. In fact, the refusal of drug manufacturers to ship lethal injection drugs to the states is what prompted the confused and complicated status of the death penalty in Oklahoma.

When the state could no longer obtain pentobarbital for use in lethal injections, legislators amended Oklahoma law to allow several different drug cocktails for use in lethal injection.  The lethal injection cocktail the state has been using is midazolam, a sedative implicated in the "botched" executions of Dennis McGuire, Clayton Lockett, and others. 

In a lawsuit brought by several Oklahoma death row inmates against the state Department of Corrections, the United States Supreme Court is asked to consider whether the use of midazolam for inmate executions is a violation of the Eighth Amendment prohibition against cruel and unusual punishment. 

In 2008, the Supreme Court validated existing lethal injection protocols saying that incidental pain in death is not unconstitutional. Instead, it would be "cruel and unusual" to intentionally inflict pain in death. However, because the method of execution validated seven years ago is no longer available due to drug shortage, the Oklahoma inmates are asking the Court to consider the new method of execution.

If the highest court rules against the use of midazolam in executions, it will not be the death knell for the death penalty in Oklahoma. State law provides for backup methods, including the electric chair and firing squad, if other methods become unconstitutional.  And if the Court does not rule against the use of midazolam, it seems likely to be only a matter of time until that drug will suffer a "shortage" like its predecessors used in lethal injections. What then? Will the Supreme Court be asked to approve every single drug and drug combination that replaces an approved lethal injection cocktail in the event of a shortage?

The future of the death penalty in the United States is in question. Currently 31 states, as well as the United States government and the U.S. military allow capital punishment. Nineteen states and Washington, D.C., disallow the death penalty. It will be interesting to see what the effect of the Supreme Court decision later this month will have on capital punishment in the 31 death penalty states.






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