If not the electric chair, then what?

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By DEENA WINTER/Lincoln Journal Star

Even if Nebraska switched its method of execution to lethal injection today, the future would be murky.

The U.S. Supreme Court has heard challenges to lethal injection by defense lawyers who argue that it violates a constitutional ban on “cruel and unusual punishment.” The court is expected to rule by this summer.

While awaiting its ruling, courts across the county have granted stays, effectively putting a moratorium on executions.

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The electric chair at the Nebraska State Penitenitary (LJS file)

The electric chair at the Nebraska State Penitenitary (LJS file)

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What happened: The Nebraska Supreme Court ruled Friday in State v. Mata that death by electrocution violates the prohibition against cruel and unusual punishment.

What they said: “under modern scientific knowledge, ‘(electrocution) has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber’ of state prisons.”

What it means: Nebraska’s death penalty law stands, but state law provides no constitutionally acceptable means of execution.

What they said: “Mata’s sentence of death is affirmed. But under our system of government, while the Legislature may vote to have the death penalty, it must not create one that offends constitutional rights.”

What happens next:

• Nebraska Attorney General Jon Bruning said Friday he’ll file a motion asking the court to reconsider the ruling.
• The Legislature will debate a bill (LB1063) that would repeal the death penalty. Gov. Dave Heineman has said he would veto such a bill if it passed final reading.
• If senators voted to suspend bill introduction rules, a new bill could be introduced this session to change the method of execution.
• Heineman could request introduction of such a bill, which would go to the Judiciary Committee for public hearing.

What Heineman said: “I am appalled by the Nebraska Supreme Court’s decision. Today the court has asserted itself improperly as a policymaker. Once again, this activist court has ignored its own precedent and the precedent set by the U.S. Supreme Court to continue its assault on the Nebraska death penalty.”

The Nebraska Supreme Court’s Friday ruling striking down electrocution shifts the debate to whether the state’s death penalty should be abolished, or if a more humane execution method should be used.

Deborah Denno, an authority on execution and professor at Fordham Law School in New York City, has written about the death penalty for about 18 years. Her writing on the unconstitutionality of electrocution was cited in the Nebraska court ruling, which she called a “very important decision.”

She said Nebraska lawmakers should take their time, wait for the U.S. Supreme Court decision on lethal injection and not just blindly adopt a new way to execute inmates.

“I would hope the state of Nebraska, if it continues to have the death penalty, would really do its research,” she said, perhaps by appointing a committee of experts to examine execution methods.

She said believes certain people deserve to die for their crimes, but the death penalty is unconstitutional because it isn’t applied fairly in this country, with innocent people being put to death and racial and socioeconomic biases in the system.

“We should not have the death penalty, but if we’re going to have it, we should have a humane method,” Denno said.

Richard Dieter is executive director of the Death Penalty Information Center, which analyzes capital punishment issues and has criticized the way the death penalty is applied, but is not anti-death penalty.

He said the Nebraska ruling gave state lawmakers a good framework for switching to a constitutional execution method that avoids unnecessary pain, assuming they aren’t inclined to abolish the death penalty.

However, merely switching to lethal injection won’t solve Nebraska’s problem, he said, given the pending U.S. Supreme Court case.

“Legislators might be cautious about sort of jumping to a quick fix,” Dieter said. “Lethal injection is a murky area right now. It’s not the simple solution to this problem that it was 10 years ago when other states adopted it and abandoned the electric chair.”

While the high court is unlikely to strike lethal injection, it may set standards for administering it more humanely, according to modern standards of decency, Dieter said.

“I think they’ll leave open the possibility that lethal injection, if properly applied or if modified in some way, can be used,” he said.

Most states execute prisoners by using three drugs that anesthetize, paralyze and then stop the heart of inmates, but sometimes with gruesome sluggishness. It would be more humane to have a doctor involved in the execution — although that raises ethical issues — and administer a lethal dose of the single barbiturate veterinarians use to euthanize animals, he said.

“It might (take) longer, but it would only be longer for those watching,” Dieter said.

Denno said the single drug approach would be more humane than the three-drug protocol now used.

It’s telling, she said, that the last two inmates electrocuted in the U.S. had the choice between lethal injection and electrocution and chose the chair.

Reach Deena Winter at 473-2642 or dwinter@journalstar.com.