Bruning: Advance lethal injection

LINCOLN — Nebraska should not be deterred by a recently botched execution in Ohio and ought to move forward with a proposed three-drug protocol to carry out executions by lethal injection, State Attorney General Jon Bruning said Monday.

Bruning said he hoped the proposed protocol would avoid the problems experienced in Ohio in September. That's when an execution was called off after an inmate was stuck 18 times with a needle in an unsuccessful attempt to find a suitable vein for injecting the three drugs.

Bruning rejected a call issued Monday by some death-penalty opponents for Nebraska to seek a one-drug protocol, as Ohio adopted last week, to avoid the possibility of tortuous pain for the condemned.

Said Bruning, “I'm confident that Nebraska is not only in the mainstream, but it's law, and protocol will be found to be constitutional.”

He said Nebraska could carry out an execution under the new rules as soon as the first quarter of next year.

The attorney general commented after a public hearing Monday at which death-penalty opponents predicted that the botched execution in Ohio and Ohio's switch to a one-drug protocol would bottle up Nebraska's proposal in litigation.

“If we didn't think the litigation would be long and expensive before Ohio, I think we can guarantee it now,” said Jill Francke, statewide coordinator for the organization Nebraskans Against the Death Penalty.

Nebraska is joining 35 other states and the federal government in using lethal injection to carry out its death penalty.

Only two people testified during the public hearing held by the Corrections Department on its proposed execution protocol. Both were opposed to the death penalty.

About 15 people and organizations — also opponents of capital punishment — submitted written testimony.

New execution rules are needed because the Nebraska Legislature voted last spring to shift the state's method of execution to lethal injection. The action was taken in response to a State Supreme Court ruling in 2008 that said the state's former method, electrocution, constituted cruel and unusual punishment.

Most of the testimony and letters against adopting the new protocol centered on the added expense of lethal injection and capital punishment during rough economic times, the lack of specifics on training executioners and the potential for “torturous pain” with the three-drug protocol.

Death-penalty opponents who spoke after the brief hearing cited the Ohio debacle, in which the execution of convicted child-killer Romell Broom was called off. Court records indicate that Broom cried out in pain when he was inadvertently stuck in a bone near his ankle.

“They've been sentenced to death. They weren't sentenced to torture,” said Ty Alper, associate director of the Death Penalty Clinic at the University of California at Berkeley.

Alper, who had a speaking engagement at the University of Nebraska College of Law scheduled to coincide with Monday's hearing, said Nebraska's proposed three-drug protocol would be illegal to use on animals in 42 states.

Bruning said the Nebraska protocol contains safeguards to avoid the problems that occurred in Ohio. An “IV team” — prison personnel who receive emergency medical technician (EMT) training — would meet with the condemned person 48 hours before execution to find suitable veins to insert an intravenous catheter, he said.

Bruning said Broom was a former IV drug user, so finding a vein was a problem.

In response to the botched execution, Ohio last week became the first state in the nation to switch to a one-drug protocol. That drug, sodium thiopental, is a powerful anesthetic that is used to euthanize pets.

The protocol proposed in Nebraska, and the one commonly used across the country, uses three drugs: sodium thiopental, pancuronium bromide and potassium chloride.

The first drug anesthetizes the condemned inmate so the person does not feel pain from the second and third drugs. The second drug paralyzes the inmate so the person doesn't twitch or show pain, and the third drug stops the heart, causing death.

Alper said the use of the paralyzing drug makes it impossible to tell whether a lethal injection execution has been botched and makes the death appear “peaceful” when it might have been anything but that.

Francke said the constant “tinkering” with the means of carrying out the death penalty over many decades illustrates that there is no acceptable method.

She predicted that a lawsuit would also be filed challenging the procedures used by the Corrections Department to adopt the new protocol. Francke said the procedures lack a cost estimate for changing to lethal injection and don't specify how the executioners will be trained.

Bruning, however, said the three-drug protocol has been upheld by the U.S. Supreme Court as constitutional. And, in their ruling, the justices were clear that “marginally safer” methods were unnecessary, Bruning said.

“The bottom line is that the method doesn't have to be perfect, it just has to avoid being cruel and unusual punishment,” he said. “You would have to be able to sufficiently reduce a substantial risk of severe pain. There's no proof that the one-drug protocol does that.”

It will be several weeks before the Corrections Department decides whether the protocol should be approved or revised, said George Green, an attorney for the department. The governor and attorney general would have to OK the rules before they took effect.

One of the two people who testified, Marylyn Felion of Omaha, broke into tears as she described accompanying death-row inmate Robert Williams, as his spiritual adviser, to the electric chair when he was executed in 1997.

Anyone who went through that would oppose the death penalty, she said.

“What is so important? What is it about us as a people ... that we must continue to kill?” Felion asked. “The only think I can think of is apparently we like to kill.”

Contact the writer:

402-473-9584, paul.hammel@owh.com

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