Mere days after the fractious 106th Nebraska Legislature wrapped up and adjourned for the year, Governor Pete Ricketts vetoed a number of bills that passed with bipartisan support in the body's final days. Along with bills meant to address prison overcrowding (LB1004), natural hair discrimination (LB1060), and access to higher education (LB1089), Governor Ricketts vetoed LB238, which increased execution transparency, effectively killing the bill.
When a bill is vetoed after the Legislature has completed its session and adjourned for the year, there can be no opportunity for a vote to override the veto. This means LB238 and all the other bills vetoed this week are dead, and must be reintroduced in the next session in January, beginning the entire legislative process all over again.
But we don't have to wait until January for more legislative action. Nearly a dozen groups dedicated to social and racial justice have demanded that a special legislative session be convened to address police brutality, systemic racism, and broader criminal justice reform. Although a special session of the Legislature would be limited to the scope of the business for which it convened, years of study have shown there is a bright clear line connecting racial disparity and state violence in the uneven imposition and administration of death sentences. We've written about this connection on this blog before, and we're confident that such a session could also address imposition and administration of the death penalty in Nebraska! Details on a great way for you to raise your voice on this important issue can be found at the end of this post.
LB238 was a straightforward bill designed to increase government accountability and transparency during the lethal injection procedure used to carry out a death sentence in Nebraska. As introduced by Senator Patty Pansing Brooks, who represents Legislative District 28 in central Lincoln, LB238 would have simply ensured that execution witnesses allowed or mandated by law "shall not be obstructed, shielded or otherwise impeded from witnessing or viewing the execution" at any time during the procedure.
During her opening remarks on the bill's second-round consideration by the Legislature last week, Senator Pansing Brooks stated that although she is personally opposed to the death penalty, she also acknowledges the results of the 2016 ballot referendum (which overturned the Nebraska Legislature's 2015 abolition of the death penalty). She reassured her colleagues that LB238 would not interfere with the administration of the death penalty or undermine the 2016 ballot referendum results. Instead, the bill would simply ensure that "our government's most powerful act" be completed in full view of witnesses rather than behind a (literal) veil of secrecy.
Senator Pansing Brooks then pointed out with astonishment that the publicity surrounding several botched executions within the past decade has caused a number of states and other jurisdictions to push for increased secrecy rather than safer and more stringent protocols, "as if the real problem is that people see or know about these botched executions," not that they happen at all. She brought up the controversial execution carried out by the State of Nebraska on Carey Dean Moore two years ago this month, during which a curtain was drawn to obstruct witnesses' view of the procedure for a total of 14 long minutes, fueling speculation that something had gone wrong in the procedure.
The bill advanced to the final round of debate on a simple voice vote last Tuesday, then passed the final round on the Legislature's final day Thursday by a vote of 27-12 before being delivered to Governor Ricketts later that morning. Although the Legislature is a nonpartisan body, a closer glimpse into LB238's final vote tally reveals an appreciation for government transparency and accountability that transcends party lines: of the 27 Yes votes, 10 came from avowed Republicans. However, rather than give heed to voices from within his own party, Governor Ricketts instead chose to send the bill back unsigned, rejecting another chance at increasing the transparency and accountability of his administration.
This week's veto of LB238 fits within a larger pattern of apparent contempt for accountability and the concept of co-equal government displayed by Governor Ricketts during his time in office, particularly regarding capital punishment:
When the Legislature passed a bill to repeal the death penalty in 2015, he vetoed it.
When the Legislature overrode his veto, he funded a 2016 ballot drive, largely with his own money, to overturn the repeal.
When he could not purchase execution drugs stateside, he turned to a problematic foreign broker, who cashed checks for $54,400 but never supplied the drugs (calls for Governor Ricketts to reimburse state taxpayers went nowhere).
When the execution protocol was changed to use more easily-obtainable drugs in a previously untested combination, he ignored objections and legal challenges to their use.
When asked where the new drugs were acquired and manufactured, Governor Ricketts and Department of Corrections Director Scott Frakes stonewalled and insisted they were not obligated to divulge that information.
When a German drug manufacturer sued for an injunction to halt Carey Dean Moore's 2018 execution, alleging that for the State to possess its products meant that a contract condition was violated preventing their sale for use in an execution, Ricketts and Frakes again stonewalled and refused to divulge the identity of the drugs' manufacturers.
When sued by the state's two biggest newspapers and the ACLU to reveal the source of the drugs, he lost - then tied up the suit in course for nearly two more years, appealing losses all the way up to the Nebraska Supreme Court, who finally forced the administration to disclose the drugs' source and manufacturers (exposing earlier lies told about the identity of one of the manufacturers).
It should therefore come as no surprise that Governor Ricketts vetoed a bill this week which sought to deny him the ability to decide when and how to obstruct (and even redefine) the legal act of witnessing an execution, nor should it shock anyone that he did so over the approval of both a bipartisan majority of the Legislature and the American Bar Association. The pattern is clear.
Senator Pansing Brooks released a fiery response Monday condemning the veto as evidence of the Ricketts Administration's "intention to continue to carry out this solemn act without oversight, transparency, and accountability." She went on to criticize the reasoning Governor Ricketts offered for his veto - that it was a matter of protecting executioners' identities - as "totally bogus", since LB238 contained no alterations to current law which already protects the identities of the execution team's members. She finished her statement by saying the veto "raised serious questions about the State's ability to carry about these executions in a Constitutional manner in the future, absent such transparency." We cannot help but agree: It's hard to imagine that an administration which cares about fair and just application of the law would work this hard to shield itself from outside accountability.
CALLS TO ACTION - Please join us in calling for criminal justice reform and government accountability and transparency by choosing one, two, or all three of the actions below!
Write or call your state senator and urge them to convene a special legislative session to address racial bias in the criminal justice system, making sure to mention the direct connection between racial injustice and the death penalty. Your message doesn't have to be lengthy or eloquent, just make sure they know that you live in their district and that you expect them to take action to bring more accountability in the way Nebraska enforces its laws! If you're not sure who your senator is, you can find their name and contact information by using this tool on the Nebraska Legislature website - simply enter your address!
Check the LB238 vote again to see how your senator voted during the final round. If they voted Yes, write or call to thank them for their vote and explain why you're grateful! If they voted No, write or call to express your disappointment as politely as you can, then give your best explanation why you had hoped for a Yes vote instead. Finally, if they did not cast a vote, write or call to explain why you believed in LB238, then offer them positive encouragement to vote Yes on greater transparency and accountability in the future. Remember, they are there to represent you!
Advocating for the rights of the marginalized and condemned is often a difficult and thankless job. It can be particularly difficult to shepherd a bill like LB238 through the entire legislative process, especially considering the tumult of this year's session, only to have it vetoed in the end. Since a little positive encouragement can go a long way, please consider taking a few minutes to write or call the office of Senator Pansing Brooks to thank her for her tireless effort and perseverance: Senator Patty Pansing Brooks, District 28 Nebraska State Capitol, Room #1016 PO Box 94604 Lincoln, NE 68509 Phone: (402) 471-2633 Email: pansingbrooks@leg.ne.gov Twitter: @Patty4Nebraska
Thank you for all that you do. Towards justice!