Nebraska set for execution after about-face on death penalty

LINCOLN, Neb. — Three years after Nebraska lawmakers voted to abolish capital punishment, the state is preparing to carry out its first execution since 1997 on Tuesday in a bewildering about-face driven largely by the state’s Republican governor.

Gov. Pete Ricketts, a wealthy former businessman, helped finance a ballot drive to reinstate capital punishment after lawmakers overrode his veto in 2015. His administration then changed Nebraska’s lethal injection protocol to overcome challenges in purchasing the necessary drugs and withheld records previously considered public that would identify the state’s supplier.

“It wouldn’t even have made it to the ballot without him,” said Matt Maly, an anti-death penalty activist who has joined daily protests outside the governor’s residence. “To get something on the ballot takes a lot of money and resources. Nobody else would have cared enough.”

Ricketts argued last week that he was fulfilling the wishes of voters who opted to overturn the Legislature’s decision in the 2016 general election. He said he views capital punishment as a matter of protecting public safety and an important tool for law enforcement, despite his Catholic faith and the recent statements by Pope Francis that the death penalty is unacceptable in all cases.

“The people of Nebraska spoke loud and clear that they wanted to retain capital punishment as part of our overall state laws to protect public safety,” he said. “Our job is to carry that out.”

Nebraska prison officials are preparing to execute Carey Dean Moore, one of the nation’s longest-serving inmates, for the 1979 shooting deaths of Omaha cab drivers Maynard Helgeland and Reuel Van Ness Jr.

The 60-year-old Moore, who has had execution dates set seven previous times, has stopped fighting the state’s efforts to execute him, but two drug companies have filed legal challenges to prevent the state from using what they say may be their drugs.

On Friday, a federal judge denied the request of German pharmaceutical company Fresenius Kabi to temporarily postpone the execution. Fresenius Kabi filed an immediate appeal to the 8th U.S. Circuit Court of Appeals, which upheld the judge’s ruling Monday. The company later said it wouldn’t pursue an additional review with the U.S. Supreme Court.

Drugmaker Sandoz Inc. also filed a motion to intervene on Saturday, but that won’t prevent the execution from moving forward.

The Nebraska Attorney General’s Office is fighting the companies’ efforts because one of the four drugs used in the state’s execution protocol, potassium chloride, expires on Aug. 31. The state corrections director said last week that prison officials won’t be able to purchase more supplies of the drug because no companies are willing to sell to the department, including its previous supplier.

Nebraska last carried out an execution in 1997, using the electric chair. The state has never conducted a lethal injection. And on Tuesday, it plans to use a combination of four drugs that has never been tried.

Lawmakers abolished capital punishment in 2015, when they voted by the narrowest margin possible, 30-19, to override the then-first-year governor’s veto.

Some legislators expressed doubt at the time that Nebraska would carry out an execution ever again because of costly legal challenges, prompting Ricketts to ask for more time to set one in motion. His administration went so far as to pay an India-based middleman $54,000 for drugs — that the state never received — because they couldn’t be legally imported. The state money was never repaid.

After lawmakers overrode his veto, Ricketts contributed $300,000 of his own money to a petition drive organized by several close associates to place the issue on the November 2016 general election ballot. The governor’s father, TD Ameritrade founder Joe Ricketts, also donated $100,000 to the Nebraskans for the Death Penalty campaign.

Nebraskans for the Death Penalty raised a total of $1.3 million for the effort, but was outspent by a death penalty opposition group that received nearly $2.7 million. Even so, the reinstatement measure won support from 61 percent of voters.

Death penalty supporters said the Legislature’s vote was a fluke that didn’t represent the will of voters in the overwhelmingly conservative state. Some moderate, Republican lawmakers who previously voiced support for capital punishment but then voted to repeal it lost their seats in the 2016 election after Ricketts endorsed their opponents.

“The public (in Nebraska) has always agreed with the death penalty — always,” said state Sen. Mike Groene, an outspoken supporter of capital punishment. “I’m not the outlier here, and neither is the governor.”

Groene said the vote to reinstate capital punishment amounted to “a direct mandate from the public” to resume executions. He noted that Ricketts has now appointed a majority of the state’s Supreme Court justices, which could help clear the way for future executions.

On Monday, the American Civil Liberties Union of Nebraska asked the state Supreme Court to halt Moore’s execution, arguing that the passage of the 2015 law nullified inmates’ death sentences. But that effort, too, isn’t expected to delay Moore’s execution.

Nebraska uses the death penalty sparingly and only for crimes considered to be the most heinous, said Bob Evnen, a Lincoln attorney who co-founded the Nebraskans for the Death Penalty petition group.

Evnen said many of the previous delays in carrying out executions were driven by a 2008 Nebraska Supreme Court case that declared the electric chair unconstitutional, forcing the state to switch to a lethal injection protocol with drugs that are increasingly difficult to obtain for executions.

The original protocol called for three drugs to render the inmate unconscious, induce paralysis and stop the heart. After years of struggling to acquire one of the drugs, sodium thiopental, Nebraska prison officials changed their rules last year to let the state corrections director choose which chemicals to use.

“Policymakers are actually taking the voters seriously on this,” Evnen said.