Supporters Defend Execution LawDeborah Denno in World-Herald News Service, June 03, 2009
by Paul Hammel
LINCOLN -- Nebraska's top law enforcement official and a leading state senator expressed confidence Tuesday that the state's new lethal injection law will withstand a legal challenge.
A lawmaker who opposes the death penalty, meanwhile, said the appeal filed Tuesday would be the first of many against "a deeply flawed law.''
Five days after Legislative Bill 36 was signed into law, Tuesday's appeal was filed on behalf of death-row inmate Raymond Mata Jr.
The appeal asks the Nebraska Supreme Court to rule the law unconstitutional -- arguing, among other things, that the law improperly delegates authority to devise the new execution protocol from the State Legislature to an executive branch office, the State Department of Corrections.
Attorney General Jon Bruning and the bill's sponsor, State Sen. Mike Flood of Norfolk, both issued assurances that LB 36 was constitutionally sound.
"We took into account what other states have done and what has passed constitutional muster before the U.S. Supreme Court,'' Bruning said in a statement.
Corrections departments in 22 other states, Bruning said, have successfully crafted lethal injection protocols.
"I'm confident Nebraska can constitutionally do the same,'' he added.
The swiftness of the challenge -- but not the challenge itself -- came as a surprise to Flood.
He introduced LB 36 this year after the Nebraska Supreme Court in March 2008 ruled in another appeal by Mata that the state's old method of execution, electrocution, was cruel and unusual punishment.
LB 36 was patterned after a lethal injection law in Kentucky, which was upheld in a 7-2 ruling by the U.S. Supreme Court a year ago. Flood has said that the high court ruling gave him confidence lethal injection would withstand legal challenges if it followed the Kentucky protocol.
Under the Kentucky protocol, three drugs are injected into the condemned inmate: sodium thiopental, to induce unconsciousness and to anesthetize against any pain associated with the second and third drugs, which are pancuronium bromide, which causes paralysis, and potassium chloride, which prompts cardiac arrest and death.
Nebraska's law also adds "consciousness checks'' to determine whether the first injection has knocked out the inmate. Such checks were recommended by the two dissenting judges in the Kentucky case, Baze v. Rees.
During floor debate, Flood said those checks give Nebraska's law additional legal safeguards.
As in Kentucky, the Nebraska corrections department will devise a protocol for administering the lethal injections.
In Tuesday's appeal, Mata's attorney, Jerry Soucie, argues the Legislature did not provide sufficient guidance to the department on matters such as which drugs to use, the timing of their administration and whether the lethal substance should be "a fast or slow acting poison.''
"The Legislature cannot delegate . . . its legislative authority to determine the guidelines, procedures, standards or policies associated with lethal injection to the executive branch,'' the appeal states.
State Sen. Danielle Nantkes of Lincoln, a leading death-penalty opponent, raised several of the same arguments during legislative debate. She said the bill was "deeply flawed'' but that lawmakers, who voted 34-12 to approve it, ignored those warnings.
"I don't see a swift conclusion to this issue,'' Nantkes said. "It's very, very telling that this was filed so quickly.''
Deborah Denno, a Fordham Law School professor who has written extensively on the death penalty, said the Baze decision was "highly splintered'' and offered no definition of what protocols would be "substantially similar'' to Kentucky's and thus constitutional.
"It's really hard to understand what (the decision) stands for,'' Denno said.
Mata, of Scottsbluff, was condemned to die for the 1999 kidnapping and killing of 3-year-old Adam Gomez, the son of a girlfriend.
Mata, according to prosecutors, became enraged when he learned the girlfriend had become pregnant by another man. He dismembered the child's body, kept some parts as trophies, boiled some of it, fed part of it to a dog and flushed some down the toilet.
Flood said it appeared the appeal of LB 36 was premature because it doesn't become law until Aug. 30 and because the protocols to be used have not been adopted.
Soucie, of the Nebraska Commission on Public Advocacy, stated that Mata is facing a deadline this October to file appeals in federal court. That, he wrote, places his client in an "untenable procedural position'' to challenge a lethal-injection protocol that might not be in place by then.
The defense attorney asked the Nebraska Supreme Court either to order a lower court to commute Mata's sentence to life in prison without parole or to require the state in a court hearing to demonstrate that the new method of execution is constitutional.
Nebraska is one of 35 states with a death penalty. Nebraska was the last state to exclusively use the electric chair as its method of execution.