Execution stayed; debate continues


May 31st, 2011

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Lincoln, NE – Three years after the state Supreme Court ruled the electric chair could no longer be used, Carey Dean Moore’s execution has been stayed by the Nebraska Supreme Court. The Court made the ruling May 25, 2011, after Moore challenged the use of an imported drug in the state’s new lethal injection cocktail.

The case and debate over the method to be used for capital punishment in the state now stretches over three decades. In fact, it’s one of the most controversial and fascinating legal and ethical discussions underway.

Convicted killer Carey Dean Moore won a stay of execution from the Nebraska Supreme Court on May 25, 2011, after challenging the state's use of an imported drug in its lethal injection cocktail. (Photo released by the Nebraska Department of Corrections in 2004)

In the summer of 1979, Carey Dean Moore murdered two cab drivers in Omaha within a week. Since his conviction he has been on Nebraska’s death row. At one point even made his own request to have the State proceed with his execution. Nebraska Attorney General Jon Bruning told NET News that he finds it “unbelievable that any case can languish for 32 years in the courts.” Bruning, who as a State Senator helped craft the state’s current laws on capital punishment believes waiting any longer is an unfair burden on those the two victims left behind since “the families of the two men who were killed have had to wait this long for justice.”

When Moore was convicted he was sentenced to die in the electric chair. Nebraska was the only state left to rely on electrocution as the sole means for capital punishment. The chair was replaced by death by way of lethal injection in 2009.

The use of prescription drugs to carry out executions poses a variety of challenges the state never faced using electrocution or even hanging before that. Major drug companies like Hospira have decided to withdraw products from the market rather than have them used in the execution process. It is a decision that indicates, according to one company representative talking on background to NET News, that these firms are uncomfortable with the ethical issues raised by drugs created for healing being used to end life. They also don’t care for the publicity and political pressure brought on by providing the drugs to states executing prisoners.

The nation's first electric chair (Photo courtesy Wikimedia). Nebraska used this method of execution until 2009, when it was replaced by lethal injection.

In Nebraska, the execution team includes at least two people trained in administering drugs intravenously. It won’t be a doctor, an anesthesiologist or a nurse. The professional organizations for those specialties including the American Medical Association and The American Nurses Association forbid members from participating in executions. It violates their code of ethics. All take an oath not to harm patients. In a position statement released in 2010 , the Nurses Association took a firm stand against any form of assistance in executions, even including helping maintain equipment or handling supplies used in the process. The paper stated: “The ANA recognizes that the endorsement of the death penalty remains a personal decision and that individual nurses may have views that are different from the official position of the profession. Regardless of the personal opinion of the nurse on the appropriateness of capital punishment, it is a breach of the ethical traditions of nursing, and the Code of Ethics to participate in taking the life of any person. The fact that capital punishment is currently supported in many segments of society does not override the obligation of nurses to uphold the ethical mandates of the profession.”

Amy Haddad, the director of the Center for Health Policy and Ethics at Creighton University , explains that for health care professionals object to making it seem as if using drugs makes an execution “a medical procedure” adding “it’s kind of a quasi-medical procedure and I think that’s where the problems come in.”

Haddad points out there maybe more leeway for a Pharmacist to be involved in obtaining and preparing the dosage of the drugs to be used for executions. The professional group for Pharmacists leaves participation in capital punishment up to individual members. There are still two distinct points of view. “Everything in Pharmacy school is directed towards the most beneficial use of all these very dangerous substances to help benefit the patient,” Haddad told NET News. “You kind of have people saying there’s kind of a conflict there with being involved using these substances for a completely contrary purpose.”

The interim director of Pharmacy at the Nebraska State Penitentiary did take part in procuring the sodium thiopental from the supplier in India. While not commenting on that decision to assist, it does underscore that However some Pharmacists find their participation not only ethical but humane. Ethicist Amy Haddad points out that “sounds kind of like an oxymoron to be interested in the well being of someone who is going to be executed but it focuses on that if the aim is execution than we shouldn’t add unnecessary pain and suffering. When in fact that is why we moved to lethal injection.

Records released by the Nebraska Department of Corrections and reviewed by NET News show the execution team has been selected by the Department of Corrections. Their identities, by law, are a closely held secret. Attorney General Bruning says that as that team underwent training “we have not had to reinvent the wheel” since Corrections consulted other state prison systems with experience using this process. “There is a community among the states where best practices have evolved,” Bruning told NET News.

Sen. Brenda Council, a long time opponent of capital punishment, argues minimal training risks lethal injection drugs being administered in a way that could cause suffering. (Photo courtesy Nebraska Legislature)

With no medical professionals able to take part, the execution team is made up of prison employees. The documents released by the state’s prison system give some insight into training received by the team. The records, with the names blacked out, indicate at least three people attended classes and earned certificates as Emergency Medical Technicians. Additional courses were completed out of state in a New York based nursing program. State Senator Brenda Council of Omaha, who, along with two other state senators, requested Corrections provided the documents, continues to have concerns. “What we suspect is occurring,” Council says, “is these individuals are being enrolled in a standard EMS class as opposed to a specific training protocol being developed for lethal injection.

The Senator, a long time opponent of any form of capital punishment, argues that minimal training risks the drugs being administered in a way that could cause suffering. The United State Supreme Court has ruled that any method of execution must not be “cruel or unusual punishment.” Council adds “if didn’t matter how death was accomplished, we’d still have firing squads, we’d still have hangings, we’d still have Ol’ Sparky,” the nickname for the state’s recently retired electric chair.

Nebraska’s source of one of the three drugs used in the execution process has also been challenged. Sodium Thiopental is the anesthetic used to put the prisoner to sleep. All drug companies in America stopped making it, in part to avoid selling it to prisons for executions. Nebraska got a shipment from Kayam, a small generic drug maker in Mumbai, India. Once publicity about the sale made international headlines, the company stopped selling the drug when used for executions.

“Nebraska spearheaded the effort to go to India,” according to Sophie Walker, an investigator with the international anti-death penalty organization Reprieve. Speaking with NET News from her office in London, Walker pointed out that the United States Supreme Court has called Sodium Thiopental “the most important drug” in the execution process since “it is the anesthetic and without the anesthetic, the execution is cruel and unusual punishment.”

Walker’s research on Kayam is now central to Carey Dean Moore’s argument that his execution be postponed. Legal briefs question the purity of the drug. Moore’s attorneys have been instructed by the convicted man not to speak to the press and would not explain their objections. Sophie Walker claims no execution should proceed unless it’s clear the drug has been tested for quality and purity. “It’s a matter of making sure the drug is a viable drug,” she explains, and the state should know “every single step that drug took before it came to the prison” to assure its both effective and would not cause undue suffering. Walker told NET News “the issues that are being raised in Carey Moore’s stay for an execution is that we don’t have all those answers and without all those answers we risk having an unconstitutional execution.”

The Department of Corrections won’t comment beyond the short prepared statements it’s made defending the acquisition. Attorney General Bruning was cautious in his comments. “I don’t want to get into all the details about that because of the risk of pending litigation.” However he went on to say “as someone who helped write the law when we changed from electrocution to lethal injection I am confident that our protocol and our law is constitutional.”

As of now, thirty five states and the United States government use lethal injection to execute those facing the death penalty. In the past 30 years over a thousand people have been put to death using the method. However, there is no current standard operating procedure to carry out an execution by lethal injection. It is up to each individual state to develop and oversee its own process.

One Response

  1. Bosman says:

    Sen Council is just another left-wing nut.

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