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Midlands Voices: Execution Costly, Legally Unsound

By: Mike Nelsen | February 27, 2011

The writer, of Omaha, is a lawyer. He is not involved in the Carey Dean Moore case, but he is involved in two other Nebraska death-row cases.

It would appear that the season for executing Nebraskans has come around again.

Nebraska Attorney General Jon Bruning has asked the Nebraska Supreme Court to issue a death warrant for Carey Dean Moore, who has been on death row since 1979.

Executing a man after more than 30 years on death row makes little sense to many people. Yet, it makes a lot of sense to other people.

If Mr. Moore is executed, we’ll probably never know the total costs paid by the State of Nebraska to put him away. Mr. Bruning refuses to divulge those figures.

I want to lay a bet on the attorney general: If he can show me and the public that the total cost — start to finish — of getting Mr. Moore executed is less than $1 million, I’ll buy Mr. Bruning a steak dinner.

I’m confident I’d win that bet, considering that those total costs include the tremendous amount of attorneys fees, both for the prosecution and defense, through the whole process; the cost of having a separate death row; the costs of expert witnesses at various hearings and trials; the costs of innumerable appeals; the costs of preparing and implementing the death protocols; the costs of the execution team, ad infinitum.

Even if the death warrant is issued, execution is likely to be stymied because of court challenges. (The ACLU is threatening suit right now.) Months or years of additional court proceedings are in the offing.

Nebraska now uses lethal injection, with a three-drug “cocktail,” to carry out an execution. But the three-drug scheme has come under legal challenges. One of the drugs now has to be procured abroad, since the previous U.S. manufacturer stopped making it because the manufacturer’s CEO didn’t want it used in executions. (That’s not surprising, since the drug was originally designed to cure, not kill, people.)

Ultimately, however long it takes to get to that point, the Nebraska Supreme Court will have to decide whether lethal injection constitutes cruel and unusual punishment, in violation of the Eighth Amendment of the U.S. Constitution, or whether the death penalty itself violates the U.S. Constitution, irrespective of the method of execution.

The execution of Mr. Moore, if it occurs, will depend not only on the legal skirmishing and the ultimate decision of the Nebraska Supreme Court but also on the location of Mr. Moore’s veins. If his veins are deeply embedded in his flesh, problems could arise.

Recently, in Ohio, the execution team tried unsuccessfully for more than two hours to find a vein to insert the IV into the condemned man. The team even tried to find a vein in the man’s foot. The governor finally called off the mayhem. This person is still alive.

We don’t know whether this will happen in Mr. Moore’s case. But we know one thing — the execution team will not include a doctor or registered nurse. Neither can participate in light of the ethical rules of their professions.

Here we go again. When and if we move closer to an actual execution, the old arguments and debates will resurface. We need not revisit those matters here.

Suffice it to say that the national spotlight will be on Nebraska, as it is on every state that resumes executions after many dormant years.

One final, hopefully practical, note: If Nebraska is in a budget crunch and wants to explore areas in which money can be saved, one need only look to eliminating the death penalty. Maryland* and New Mexico have done so recently simply because of the cost.

I hate to say it, but abolition of the death penalty would deprive lawyers like me, who do death penalty work, of a lucrative source of income.

Connect to this story online here.


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