After a bracket motion failed, senators passed a bill May 28 adopting lethal injection as the state’s method of execution.

Since the Nebraska Supreme Court ruled last year that electrocution – the sole method of execution authorized by Nebraska law – violated the state constitutional prohibition against inflicting cruel and unusual punishment, the state was left with no legal method for carrying out the death penalty.

LB36, proposed by Norfolk Sen. Mike Flood, changes the method of execution from electrocution to intravenous injection of a substance or substances in a quantity sufficient to cause death.

The bill would require the Department of Correctional Services to establish protocol for conducting lethal injection executions, including the selection of the lethal substance or substances to be used. The protocol is not exempt from the provisions of the Administrative Procedure Act.

During select file debate, Lincoln Sen. Danielle Nantkes offered a motion to bracket the bill until May 29, effectively killing it. Calling the bill “a flawed piece of legislation,” Nantkes specifically opposed the provision allowing the department to establish protocol for administering lethal injection.

“We’re abdicating our authority,” she said.

Without detailing a protocol in LB36, Nantkes said legislators cannot be sure the bill will stand up under Nebraska Supreme Court scrutiny.

Omaha Sen. Brenda Council supported the bracket motion, saying there is no way for the state to be completely sure a person is guilty and therefore, should not sentence anyone to death.

“Our history with the death penalty is that for seven out of every 10 who have been sentenced to death, their sentences have been reversed because an error has been found,” she said. “We’re throwing the data out the window.”

Flood opposed the bracket motion, saying the state already has the death penalty in place; LB36 is merely supplying a method to carry it out. Furthermore, he said, the bill is modeled after a Kentucky law that already has sustained a constitutional challenge.

The bracket motion failed on a 11-35 vote and LB36 advanced to final reading on a 34-11 vote.

Other provisions of the bill:

    * provide members of the execution team protections from disciplinary actions by a licensing board as well as a level of confidentiality, unless extraordinary good cause is shown to a court;
    * clarify that the identities of the execution team are confidential to the limits allowed under the Nebraska Public Records Statutes and are not exempt from the Freedom of Information Act; and
    * allow at least two members of the media to attend an execution.

LB36 passed on a 34-12 vote.
 
Reprtined from Nebraska.gov [1]