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Lethal injection

The execution chamber at the Nebraska State Penitentiary.

ERIC GREGORY, Journal Star file photo

A Lancaster County judge has dismissed a lawsuit filed on behalf of death-row inmates challenging the referendum that reinstated the death penalty in Nebraska.

In a 14-page decision Monday, District Judge John Colborn agreed with attorneys for the state who argued that there was an equally serviceable remedy available to those inmates on one of their three claims: post-conviction motions in their criminal cases.

But two other claims failed outright, he found.

The ACLU had filed the lawsuit in December, asking the court to block the state from carrying out executions for those who were on death row when lawmakers repealed Nebraska's death penalty in 2015.

They argued three points: the referendum was invalid because supporters failed to file a sworn statement; because Gov. Pete Ricketts and Treasurer Don Stenberg simultaneously had exercised executive and legislative powers; and that, even if it was valid, LB268 irrevocably converted those inmates' death sentences to life sentences.

In his order, Colborn rejected the ACLU's separation-of-powers argument, finding that the interpretation would make a wide range of activity constitutionally suspect, "like members of the executive and legislative branch endorsing one another for office, campaigning for one another, or donating to one another's campaign."

"The plaintiffs have not identified any cases that support their sweeping reading of this language," he wrote.

So, too, did he reject the ACLU's contention that the repeal converted inmates' sentences to life terms.

He concluded that the referendum petition suspended the legislative act when the petition was filed with the secretary of state Aug. 26, 2015, four days before LB268 took effect.

Colborn said the Legislature didn't have the power to change existing death sentences by passing the law. By law, only the Board of Pardons can commute sentences, he said.

Nebraska Attorney General Doug Peterson applauded this week's decision, calling the opinion a thorough analysis of important case law supporting the dismissal.

He said the ACLU had asked the court to "override the will of the people expressed in the referendum." But those who have committed brutal murders were legally sentenced to death, and the Nebraska Supreme Court has upheld their sentences.

"This office is committed to our legal duty to enforce the death sentences ordered by Nebraska’s Courts," Peterson said.

The Department of Correctional Services already has notified two of the men — Jose Sandoval and Carey Dean Moore — of the lethal-injection drugs that would be used to carry out their sentences, a necessary precursor to asking for a death warrant.

Danielle Conrad, executive director of ACLU Nebraska, said: "In the coming days and weeks, we will pursue vindication of our clients' rights in the proper venues and will show the errors in this lower court's order."

The fact remains that Nebraska's death penalty continues to be broken beyond repair, she said.

"There is still no way for Nebraska to obtain the drugs needed in its execution protocols that doesn't raise serious questions about violating state and federal law," Conrad said.

She said the ACLU hopes that Ricketts and Scott Frakes, the prison director, will take this opportunity to refocus their efforts on dealing with overcrowding and the state's budget crisis.

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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