Nebraska court rejects lethal injection protocol challenge | KOB 4
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Nebraska court rejects lethal injection protocol challenge

By GRANT SCHULTE
October 18, 2019 09:01 AM

LINCOLN, Neb. (AP) - The lethal injection protocol that was used in 2018 to execute a Nebraska prisoner survived a legal challenge Friday from death penalty opponents who had hoped to overturn it to prevent the state from carrying out capital punishment.

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The Nebraska Supreme Court sided with state officials who adopted the new protocol in 2017 to allow the state to resume executions.

Death penalty opponents, including state Sen. Ernie Chambers, alleged in their lawsuit that officials created the protocol without following the necessary state laws and procedures. The court declined to weigh in on those arguments, ruling instead that Chambers and the Rev. Stephen Griffith didn't have the necessary legal standing to bring the case.

"We find that the district court correctly dismissed the action without reaching the merits, because plaintiffs lack standing under (state law) to bring the claims they have asserted," Justice Jonathan Papik wrote in the opinion.

Chambers and Griffith didn't immediately return messages seeking comment. The executive director of American Civil Liberties Union of Nebraska, which filed the lawsuit on their behalf, said the group planned to release a statement. A spokeswoman for the Nebraska attorney general's office, which represented the corrections department, didn't immediately respond to an email message.

The new protocol gives the state corrections director broad authority to decide which drugs to use in executions and how to obtain them. Nebraska's previous protocol called for three specific drugs, including some that state officials weren't able to get.

The lawsuit asked a district court judge to halt all planned executions on grounds that the new protocol was invalid. But Lancaster County District Court Judge Lori Maret ruled that the plaintiffs didn't have standing to bring the lawsuit because they aren't on death row and the protocol change didn't infringe on their legal rights. Chambers and Griffith appealed the case to the Nebraska Supreme Court.

Nebraska and other states have found it increasingly difficult to carry out executions because many drug companies don't want their products used to kill inmates and are refusing to sell them to correctional departments.

Nebraska officials responded by refusing to identify their supplier, despite releasing such information in the past under the state's open-record laws. The new protocol allowed them to obtain other drugs that were more readily available, and those drugs were used to execute inmate Carey Dean Moore in August 2018, the first time the state had carried out capital punishment in 21 years.

It's unlikely the state will carry out another execution anytime soon.

Last year, Corrections Director Scott Frakes acknowledged in a court filing that his agency won't be able to buy any more of the drugs that were used to execute Moore because the state's supplier is no longer willing to sell them.

Frakes said he contacted at least 40 potential suppliers in six states, and no one else agreed to provide the drug. Some of the drugs used in Moore's execution have since expired.

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Follow Grant Schulte: https://twitter.com/GrantSchulte

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By GRANT SCHULTE

Copyright 2019 The Associated Press. All rights reserved.

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