Nebraska officials are making a renewed push to carry out the country’s first lethal injection using fentanyl, asking the state’s highest court to set an execution date this summer before one of its other drugs expires.
The request from Nebraska Attorney General Doug Peterson for an execution date in July comes as his state — which has not carried out a death sentence since 1997 — is hoping to resume lethal injections with a combination of drugs that includes fentanyl, a powerful, synthetic painkiller that has helped drive the country’s opioid epidemic.
Nebraska and Nevada have both sought to start using fentanyl in lethal injections, while other states — struggling to obtain execution drugs amid opposition from pharmaceutical companies — also have adopted novel, untested execution methods. States have turned to previously unused drug combinations or new drugs, while Oklahoma said earlier this year it would start using nitrogen gas for all executions.
In Nebraska — which abolished the death penalty in 2015 before voters reversed that decision a year later — Peterson is seeking to execute Carey Dean Moore, who was sentenced to death in 1980 for killing two Omaha cabdrivers. According to Peterson’s office, four execution warrants have been issued for the 60-year-old inmate, all of which were stayed or withdrawn, and there are no stays in place.
Peterson and James D. Smith, the state’s solicitor general, asked the court last month to issue an execution warrant for Moore. They then filed a motion late last week requesting an execution date this summer, citing the looming expiration date for one of the drugs the state intends to use.
In that request, Peterson asked the court to set an execution date of July 10 or, if needed, sometime in mid-July. Scott R. Frakes, director of the Nebraska Department of Correctional Services, wrote in an accompanying affidavit that the potassium chloride officials plan to use to stop Moore’s heart expires on Aug. 31.
Frakes also wrote that another drug — cisatracurium besylate, which would paralyze his muscles — expires on Oct. 31. The other two drugs — diazepam, a sedative better known as Valium, and the fentanyl that will be used to knock him out — both expire in 2019, Frakes wrote. He said that the state’s execution team can carry out the lethal injection within 30 days of the Nevada Supreme Court issuing the warrant.
The American Civil Liberties Union of Nebraska, responding to the state’s request last month for an execution warrant in Moore’s case, said it condemned the “rush towards an execution with a four drug cocktail that has never been utilized” in an execution, particularly given ongoing legal battles regarding where the state obtained the drugs.
“There are multiple pending court and administrative actions on these issues,” the group said in its statement. “This process needs to play itself out before Nebraska executes a single person.”
Nebraska’s request for an execution date due to expiring drugs echoes what occurred last year in Arkansas, another state that was hoping to resume lethal injections after years without carrying out any death sentences. Arkansas officials scheduled eight executions in 11 days, a timeline they said was needed because one of their drugs was expiring. Four of those lethal injections were carried out, and a few months later, Arkansas officials said they had obtained new lethal injection drugs.
It remains unclear what will happen in Nebraska, where the state’s pardons board last month rejected a request to hold a hearing about Moore’s sentences. The pardons board said Moore had highlighted his long stint on Nebraska’s death row in requesting his pardon.
“I have been on Nebraska’s Death Row for over 37 years, and the State of Nebraska hasn’t been successful carrying out an execution on me; apparently, they do not want to execute me even though I haven’t filed any appeals in over 10 years,” Moore’s statement said, according to the pardons board. “Therefore, since they are either lazy or incompetent to do their jobs or both, I should receive a Full Pardon.”
Nevada, like Nebraska, is seeking to carry out executions using fentanyl. The state had planned to execute Scott Dozier, a 47-year-old convicted of killing a man and stealing his money, late last year, but that lethal injection has been on hold because of court actions. Dozier’s execution was postponed because of a judge’s concerns about the paralytic involved, and earlier this month, the Nevada Supreme Court sent the case back to a lower court.