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'Do We Deserve to Kill?' The Answer Is 'No' After Nebraska's Latest Execution

People who love justice hate nothing more than a justice system where only one side is able to fight

 "The attorney could have shown the court that this lethal-injection protocol featuring fentanyl is unconstitutional, because it constitutes cruel and unusual punishment, as a Nevada court has found of a similar protocol." (Photo: Josh Rushing/Flickr)

"The attorney could have shown the court that this lethal-injection protocol featuring fentanyl is unconstitutional, because it constitutes cruel and unusual punishment, as a Nevada court has found of a similar protocol." (Photo: Josh Rushing/Flickr)

“The death penalty is not about whether people deserve to die for the crimes they commit,” as Bryan Stevenson, executive director of the Equal Justice Initiative, frequently explains. “The real question of capital punishment in this country is, ‘Do we deserve to kill?’” For those of us who are most familiar with the legal deficiencies and human cruelties of capital punishment, the answer is a resounding no.

Nebraska’s execution of Carey Dean Moore this morning proves the point.

As a society, we have determined that a death sentence requires that our process for determining who is guilty, for determining whom should be executed, and for executing humanely are transparent and above reproach. By any standard, Nebraska should not have had the authority to kill Moore today with an experimental fentanyl drug protocol.

Moore’s case is remarkable for several reasons. First, he has spent 38 years on death row, the longest known period between death sentence and execution in American history. Second, six years ago, he gave up all appeals and refused to fight for his life. 

‘Do we deserve to kill?’” For those of us who are most familiar with the legal deficiencies and human cruelties of capital punishment, the answer is a resounding no. On the surface, it may appear that Nebraska could execute Mr. Moore without judicial oversight or safeguards because Moore agreed to be executed. But looking more deeply, we know Moore’s decision to stop fighting for his life is the result of Nebraska holding him for decades on death row without executing him.

As Moore faced the prospect of execution for nearly 40 years, the state frittered away the time with unconstitutional delay and bumbles. Years of Nebraska’s delay took place as it fought to execute Moore and other prisoners using the electric chair, which every other state had abandoned, until 2008 when the Nebraska Supreme Court stepped in and ruled such executions unconstitutional. During these delays, Moore was losing the will to live under threat of execution. When his will expired and he dropped his defenses, Nebraska’s Gov. Peter Ricketts rushed to carry out his signature issue — the death penalty — no matter the cost.

Our legal system can only work properly when representatives for both sides fight as hard as they can, so a judge or jury can see the best of the arguments on each side and then decide a just outcome. In this case, that did not happen. Moore’s appointed attorney asked the court earlier this month to be relieved because he could not, consistent with a lawyer’s ethics, disobey Moore’s directive not to fight. Using delay, Nebraska has been able to snuff out all of the arguments on the other side.

If a zealous attorney could fight for Moore’s life, what would she have said? The attorney could have shown the court that this lethal-injection protocol featuring fentanyl is unconstitutional, because it constitutes cruel and unusual punishment, as a Nevada court has found of a similar protocol. The protocol follows the fentanyl with a drug to paralyze the prisoner before injecting the final, painful heart-stopping medication. So paralyzed, no one in the execution room could see whether the fentanyl had rendered Moore unconscious and unable to feel pain before the painful drugs were injected.  

Moore’s attorney could have argued that Nebraska is operating in secret when the state is exercising its most dangerous authority — taking a human life. Nebraska has dodged a May 2018 ruling by a state trial court that it has been evading Nebraska public-records law by withholding information about the execution drugs in its possession. Nebraska has filed an appeal and argued that state law allows it to continue withholding the public information until it loses the appeal.

Moore’s attorney could have joined her client as a plaintiff in a pending lawsuit showing that Nebraska broke the law by evading the administrative steps required in passing its lethal injection protocol.

Or she could have joined him in the lawsuit filed by the ACLU. The suit argued that after the Nebraska Legislature repealed the death penalty in 2015 — and made this relief retroactive to prisoners already sentenced to death — the state could no longer execute them. Because Moore would not join the lawsuit, Nebraska was able to argue the execution should proceed as though the lawsuit calling into question the legality of the execution did not exist at all.

Finally, as various justices of the Supreme Court have suggested, a lawyer fighting for Moore would have argued that keeping him on death row for 38 years, longer than any other prisoner, made his execution unconstitutional under the Eighth Amendment’s prohibition on cruel and unusual punishment. 

People who love justice hate nothing more than a justice system where only one side is able to fight. Nebraska accomplished just such a one-sided battle by delaying Mr. Moore's execution until he gave up. And then we all sat helplessly by as a state, which has shown it did not deserve this irrevocable and horrible authority, executed a fellow human being.

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Brian Stull

Brian Stull is a senior staff attorney with the ACLU Capital Punishment Project. He has served as trial and appellate counsel in capital cases in North Carolina and Texas. Before joining the ACLU, Stull worked for five years at the Office of the Appellate Defender (OAD) in New York City, where he represented indigent criminal defendants convicted of serious felonies on direct appeal and in post-conviction and federal habeas corpus proceedings

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