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Nebraska Death Row

Nebraska's lethal injection chamber at the State Penitentiary in Lincoln.

The Nebraska Supreme Court ruled Friday that a challenge to the Department of Correctional Services' execution protocol can be dismissed on procedural grounds. 

The opinion did not speak to the good or bad qualities of the protocol, or whether it followed proper procedures as it was developed, as challenged by Stephen Griffith, a retired minister who has served as executive director of Nebraskans for Alternatives to the Death Penalty, and Omaha Sen. Ernie Chambers, a longtime opponent of the death penalty. 

Instead, it concluded that Griffith and Chambers did not have standing to advocate on the issue before the court based on some legal harm caused to them. 

"The execution protocol sets forth how death sentences are to be carried out. Neither of the plaintiffs is subject to a death sentence," the ruling said. "Plaintiffs have not shown and neither can we discern a way in which their rights are threatened or violated by the execution protocol."

Griffith and Chambers asked the court to stop any executions until a proper protocol is put in place that follows the state Administrative Procedure Act.

The protocol, revised in 2016 and finalized in 2017, outlines execution team duties and training requirements, and gives the Department of Corrections director authority to determine lethal injection drugs to be used and the process for obtaining them, and verification of the substances by a chemical analysis. 

Opponents of the death penalty have decried the lack of transparency in the protocol, while supporters have said there are good reasons for protecting information on elements of executions.

In a concurring opinion on Friday's ruling by Justice Lindsey Miller-Lerman, she noted that the defendants' brief indicated death row inmates are potential plaintiffs in the case, not only on the procedure by which the protocol was adopted, but also its substance. 

"So the propriety of the adoption and substance of the execution protocol may not go unchallenged," Miller-Lerman concluded. 

As it relates to the protocol, ACLU of Nebraska had argued in district court that the state's Administrative Procedure Act requires materials be made publicly available in the Nebraska Secretary of State's office when it gives notice of a proposal. Because death row prisoners cannot visit the Secretary of State's office to review those materials or attend the public hearing, that would mean nobody has standing to challenge execution protocol procedures, the ACLU said.

Danielle Conrad, executive director of ACLU of Nebraska, said Friday the Supreme Court ruling did not resolve the individual claims of those on death row regarding the claim of deficient and improper procedures that the Department of Corrections followed when establishing Nebraska’s lethal injection protocol.

"Therefore, today’s decision leaves many important questions unanswered about the Department of Corrections' hasty and secretive process for establishing new lethal injection protocols," Conrad said in a statement. 

Concerns about transparency, accountability, and fairness will persist, she said. 

"These problems will continue to drain resources from our crisis-riddled prison system, courts and legislature until we rejoin our sister states who have turned away from the death penalty,” Conrad said. 

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Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature.

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