By Brian Stull
“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.
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.
Brian Stull is with the ACLU Capital Punishment Project
Get Tickets To Vanguard’s Immigration Rights Event
Thank you for the morning humor. “experimental fentanyl drug protocol” The only to make it not “experimental” is to try it. It seems to work though perhaps Brian Stull would have liked to engage in a double blind trial Vs. SOC where either he or Carey Dean Moore receives the new c–ktail while the other one receives the previous c–ktail and we compare results. Unfortunately the trial design would not allow for a ePro component.
“whether people deserve to die for the crimes they commit” This is the only question. The rest is just BS.
That’s ridiculous. There is a lot of concern that a lot of these execution methods are painful with people conscious, experiencing distress and pain throughout.
https://www.washingtonpost.com/news/post-nation/wp/2018/08/09/tennessee-plans-to-execute-killer-with-controversial-drug-that-justice-sotomayor-said-could-inflict-torturous-pain/?utm_term=.e3136028af41
I agree with Bryan Stephenson on the main point, but the issue of the form matters greatly.
Weird… have had to “put down” four dogs in my lifetime… two of the “executions”, I witnessed… both were peaceful, no evidence of pain or distress… not even momentarily.
Sedative, rendering the animal peacefully sleeping/unconscious… then the drugs stopping respiration and heart…
Just can’t believe this is not possible for criminals…
We even have “the pill” for the terminally ill, in CA… called Dr assisted suicide… seen no outcry from folk as to the pain/inhumanity of that…
Which is rather telling if you ask me.
Look, I’m opposed to the government deciding who dies, but that doesn’t render it a non-issue if they decide to execute people.
Howard
“We even have “the pill” for the terminally ill, in CA… called Dr assisted suicide… seen no outcry from folk as to the pain/inhumanity of that…”
Do you really not make a distinction between what the individual chooses to do to take their own life and what the state inflicts on someone involuntarily? Personally I would have no problem with providing a person convicted of a capital offense with an assisted suicide combination of meds and letting them choose to end their own life at the time of their choice, or accept life in prison.
Tia, please try to keep up. The article today is all about method. “Nebraska should not have had the authority to kill Moore today with an experimental fentanyl drug protocol.”
The issue, as framed, is method… that is the only issue I spoke to… you conflate (?)…
Do we now move the discussion to the concept of the death penalty itself? Ok… since you bring THAT up, I feel safe being on topic…
Many have equated LWOP (life sentence, no parole allowed) as being equally ‘”cruel and inhumane”… often citing that older criminals aren’t likely to offend again… using that theory, the accused East Area rapist/murderer, who was a police officer, shouldn’t even be tried… too old (and feeble, as portrayed by his defense attorney, who had him “wheeled” in as ‘wheelchair-bound’) as for recidivism, and despite allegations of multiple (dozens, plus) rapes and murders, if convicted, should be immediately released? Why try him?
Had the 911 terrorists lived, having taken thousands of lives, should they be freed at age 70? Were the Nuremburg trials, and subsequent executions of those responsible for killing millions, unjustly executed by “the State”?
On one hand, I abhor the need for the death penalty… but abhor more the decision folk make to kill outside the law… Tony Diaz had committed no crime, faced no jury, yet was executed by an individual… one could argue that “the State” is the “people”, so Diaz was executed by “the State”.
In the present example, it was the convicted murderer who wished that there be no further appeals… was that not “taking the pill”?
Yes, I have a known bias… I was asked to help investigate a scene where a guy broke into a home, stabbed a pregnant woman, killing her 8-month old fetus (yes, I know some would consider that merely ending the existence of a “product of conception, not a human”)… and the brutal slashing of a two-year old, in his crib, as he napped… the “splatter” was on walls over 4 feet away from the crib… just like in the cop shows…
In my opinion, he forfeited his right to live… his “choice”… over 40 years later, he lives… in prison… all his housing, meals, medical care paid for, guaranteed, by “the State”… after all this time it is simply “wrong” that he is still incarcerated, right?
Howard’s post at 9:25 AM. I echo everything he wrote.
I would add that Moore and his saviors should all be thankful for the extra 38 years of life he was given. Had we the type of more swift justice system that I would prefer, he would have received his justified punishment a long time ago. But with that type of system there would be fewer “victims” on death row to give all the defense and social justice ACLU lawyers enough work.
Jim
““whether people deserve to die for the crimes they commit” This is the only question. The rest is just BS.”
Illustrating just how divided we, as a people, are on this issue. I see this exactly the opposite. For me, the question of whether or not we as a people have the right to take a human life, is the primary question, and whether or not the individuals deserves to die is what is BS.
My answer is no, we do not have that right.Main reason. Whether the individual deserves to die is subjective. For example, some believe that all abortionists deserve to die. Do you believe that? How far would you take it? Some see it as an absolute. If you agree, then you had better be willing to execute me, since I have performed that procedure in cases of medical necessity. I suspect that you would not sentence me to death….but there are certainly those who would. Do we really want to bet on the actions of a jury of 12? I don’t.
“actions of a jury of 12?” Any idea how many people are involved with a capital case? What is your best guess?
There are plenty of painless methods of execution. The proponents of the death penalty generally don’t care if the condemned suffer or not, since they see any constitutional protections for anyone other than themselves capricious. Those opposed to the death penalty dance around with arguments of equitability and the possibility of erroneous conviction, mentioning only in passing their moral objection to the taking of life, lest they give proponents more ammunition.
I am not in favor of the government, who is me, taking a human life. My government does so daily. If the majority of Americans believe in the death penalty and the government’s lawyers demand that it be “humane.” well designed hanging or the Guillotine do the job quite well. If we are going to engage in the execution of humans, then let us apply the penalty equitably.
18 usc § 2381
Surprising as it is I completely agree with Hobbs. If you really think fentanyl hurts try carfentanyl or carbon monoxide works well too. All this BS about whether a fentanyl OD “hurts” is just BS.
John,
“Those opposed to the death penalty dance around with arguments of equitability and the possibility of erroneous conviction, mentioning only in passing their moral objection to the taking of life, lest they give proponents more ammunition.”
Over generalization. I have always opposed the death penalty. I have a number of different reasons for doing so. Moral, the capricious & subjective nature, erroneous convictions, the cruel and unusual nature using today’s standards and processes, the cost both financial and emotional, the indirect victimization of their innocent family members and friends…. There are many reasons to oppose the death penalty. I tend to stress the one upper most on my mind as in my post of earlier today. That does not mean that all of the others do not apply.
“There are many reasons to oppose the death penalty” Agreed, though the article today is about none of them.
No one is arguing that fentanyl hurts. The problem here, or the potential problem (the issue wasn’t sufficiently litigated and that’s the point) is the entire protocol and whether it causes a substantial risk of wanton and unnecessary pain. It’s true, we humans seem to have reliable methods of painlessly causing death. The question is whether this protocol is one of them. How much fentanyl was used? How was it delivered? Who determined whether it was delivered successfully? What measures were followed to ensure that the person was totally unconscious before the paralytic and heart stopping drugs were used (which, everyone agrees, would produce extreme pain and suffering in a conscious person)? Why was the paralytic used at all, particularly given that those drugs are pretty much universally prohibited for use in the euthanasia of animals? These are legitimate questions.
Interesting passage I just noticed. Sounds like he would be a big Reisig fan as this is the Yolo SOP.
“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. “
Michelle Martens (“mother” of the late Victoria Martens).
Average cost to taxpayers to keep prisoners alive: roughly $50k/year for several decades.
Average cost of tuition for a public 4 year college: $10k/year for 4-5 years.
I think the better question is can we afford to keep people like Michelle Martens alive when we have poor people whose lives could be changed by education, children whose lives could be saved by medical treatment, an entire citizenry whose society could be made more harmonious through proper social education programs and outreach…
Nah, let’s keep a bunch of murderous pedophiles alive for 60 years to live out an adult soap opera of uselessness behind bars. (Sarcasm)
Penalty should be painless AND swift because it makes sense.
You forgot to compare the cost of keeping someone alive versus the cost of executing them. It turns out it is much more expensive to execute.
No reason it has to be. The apocryphal DoD procurement costs have nothing on the CA death penalty industry. Note that in China they send a bill to the person’s family for execution costs.
Why is it that totalitarian regimes appeal so much to some conservatives? In America we aspired to be better than that. In Trumpistan, not so much.
You may not have noticed but the state of California is moving rapidly to central control. Local input is being overridden on a wide range of issues like education, law enforcement, planning/building, etc. You are living in an increasingly totalitarian state.
That’s not based on much analysis. You can point to some centralizing but some decentralizing, for instance relaxation of laws, criminal justice reform, etc.
David, not sure of your point “relaxation of laws, criminal justice reform” these are all central. Case in point, bail.
Bail is not centralized. Local jurisdictions have their own bail schedule. Local jurisdictions have the ability to end cash bail if they so choose.
That definitely needs to be corrected. It should not be more expensive to execute. It should be kept simple and be as painless and efficient as possible.
Perhaps they should be granted 1 year to write/dictate their story or create something of value to society. They’d be given an opportunity to leave a legacy to any loved ones they might have. That seems plenty fair and humane to me.
I just don’t see the logic in pouring so much money into sustaining lives that have left such an ugly imprint on society and have no potential to redeem it… especially nonsensical when there are children and adults whose odds at life could be greatly improved with a fraction of the money we pour into prisons.
I also still hold that imprisonment is far more degrading and inhumane than death.
It sounds good to say, it should not be more expensive to execute. But the problem you have is that the criminal justice system is so bad that the threat of executing an innocent person is higher than you would expect. Since the Death Penalty has been relegalized in the 1970s, hundreds of people have been exonerated. According to a 2014 study, they believe about 4 percent of people on death row are innocent (factually innocent, not just no proof beyond a reasonable doubt) while only 1.6 percent have been exonerated. (https://www.newsweek.com/one-25-executed-us-innocent-study-claims-248889).
That study is widely discredited and as the article notes “The study required some inventive math”.
Note also that the number of people convicted based on subjective factors like eyewitness testimony is rapidly declining while those that are convicted based on objective evidence, like DNA, is increasing.
Rather than endless rounds of appeals it may be a better idea to have all capital convictions reviewed by a scientific review committee for factual innocence.
Forest – trees. Point being that the there is a percentage of people who have been exonerated from death row. The point being is that there is a percentage of people who are wrongly convicted. The point being whatever those specific percentages are, there is a not a reasonable way to reduce death penalty costs as long as the underlying system is flawed.
“Rather than endless rounds of appeals it may be a better idea to have all capital convictions reviewed by a scientific review committee for factual innocence.”
Which sounds good for those cases that have an underlying physical evidence to prove one way or another. But there is a whole host of problems it would not catch and it might not catch cases with misconduct.
Yes I worry about prosecutorial misconduct. Like everything else in our system, that needs to be addressed… but the bar should be high for death row. There are plenty of cases where there’s no doubt the person did the crime and it’s absurd to waste millions of dollars keeping being a like that “alive” with no opportunity to ever contribute an inkling of value to society while others so much more deserving of help – that they could actually repay in time – go without….
It’s also deplorable to me that drugs could ever excuse someone from murder. It’s always a sad case, no doubt. My heart breaks for these people… but murder is just something that drugs and mental illness should not excuse…
The moment someone decides to try drugs, they’ve also decided to surrender all control of their agency and place everyone around them in danger. Middle school kids and high school kids should hear of these cases of addicts doing awful things to people they’d love were their entire souls not zombified.
Meant as a friendly observation C Therese… je parle francais un peu, mais je peux lire et ecrire francais a little bit better… syntax en englais et en francais are different… learned this big time when I was dealing with employees whose first language was Farsi or Czech… the latter do not generally use definite/indefinite articles…
To others, recognize that some posters come from different linguistic traditions, so what appears to be ‘incorrect’ isn’t, just as I used “franglais” in part of this post… can think of at least 3 current, previous posters, ‘think’ in multiple tongues…
You have to read the substance, not the words…
Hi Howard; I’m just seeing this…. it sounds like you’re telling me I’ve either misunderstood or confused someone in this thread… Believable. I don’t have a concrete understanding of English grammar… it was the hardest subject for me to pay attention to in primary school. Boredom made my brain shutdown and daydream. I’d be reciting memorized Alfred Tennyson and Oscar Wilde poems in my mind while other kids actually heard what the teacher was saying… it seemed so brilliant when I was 9… now the consequences of it sting. Lol…. I probably should do something to fix this because I’m terribly insecure about it… but grammar still bores me… aye; probably overdue some personal growth…
… but there is an upside to everything. I became pretty darn good at thinking on my feet when forced to respond to a question I had not even heard, much less paid attention to the discourse leading up to it… this incidental “skill” has helped me in a number of ways. Lord knows my other deficiencies created a need for it. Hahaha!
David forgive the total irrelevance to the article… hoping it’s not a huge deal since this one’s old and inactive.
But I had to share what seemed a golden epiphany.