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Bill would end execution secrecy
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Bill would end execution secrecy

Robert Dunham

Robert Dunham, executive director of the Death Penalty Information Center, testifies at a hearing on LB238.

Seventeen states carried out executions of prisoners between 2011 and 2018.

Of those, 14 did not guarantee witnesses could view the prisoner being strapped to the gurney or the intravenous drug lines being set. That included the execution in Nebraska of Carey Dean Moore.

Fifteen states did not guarantee witnesses could hear what was happening in the execution chamber throughout the execution. For Nebraska witnesses, at least 14 minutes were excluded from sight and sound.  

Seventeen states did not guarantee witnesses could see when each drug was administered. Drugs flowed into Moore's veins in Nebraska without witnesses knowing what substances were being given, the dosages or when each was delivered. 

A late 2018 report, written by Robin Konrad for the Death Penalty Information Center, on secrecy and the death penalty said states, for the past seven years, have been using drugs and drug combinations that have never been used in state-ordered deaths, and it has been done in an expanding veil of secrecy that shields the process from public scrutiny.

Thursday, Robert Dunham, executive director of the Death Penalty Information Center, testified before the Legislature's Judiciary Committee on a bill (LB238) that would allow witnesses to view an entire execution from beginning until death is pronounced.

Lincoln Sen. Patty Pansing Brooks introduced the bill after state officials cut off the view of the execution for witnesses of Moore's death at the State Penitentiary.  

"This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history," Dunham testified. 

And Dunham has said Nebraska's execution process was the least-transparent of any in recent times. 

"Nobody drops a curtain before the defendant is declared dead," he said. 

The entire execution should be witnessed, because problems occur in inserting intravenous lines and in reactions to specific drugs, he said. 

Because it's unethical for licensed medical personnel to be involved in executions, it falls to trained staff members, who can more easily make mistakes in carrying out those medical procedures, he said. 

A letter to the committee in opposition from Corrections Director Scott Frakes said the state does not conduct executions in secrecy.

"Witnesses observe the entire execution process," he said.

When the final drug was administered, the execution was complete and then the curtain was closed, he said.

Frakes, who according to spokeswoman Laura Strimple did not testify in person because of a prior commitment, also opposed witnesses being allowed to see any part of the execution in which prison staff take part. Pansing Brooks' bill said those execution team members could wear masks or disguise themselves in other ways. But Frakes said they would have to wear more than a face mask, and could be easily identified by gender, race, hairstyle and color.

"If there was a chance that they could be identified, they may opt to cease being part of that team," Frakes wrote. 

In an interview Wednesday, Dunham talked about the secrecy issues, saying that if you believe the United States is a government by and for the people, then government shouldn't be in the business of hiding important information from the people. 

It should be accountable to the people. 

"We don't think the government should be breaking the law to carry out the law," he said. "We think that if you're going to have a death penalty, you need to carry it out in a manner that's open and honest and fair." 

Having oversight is important to making sure governments get things right, and that people don't engage in improper acts, he said.  

The reasons states give as to why executions are not transparent do not hold up, Dunham said. 

The allegations that drug suppliers have been harassed, terrorized, intimidated or threatened are either completely false or overblown, he said. 

"The amount of paranoia that we see in the state responses to not getting their way leads them to make these false, and sometimes irrational, leaps," he said.

When it got harder for states to get the execution drugs, because drug manufacturers do not want their drugs used for nonmedical purposes, he said, they got frustrated, and that was understandable.

"But being frustrated isn't a license to lie, cheat, steal and breach contracts," he said. 

Because of secrecy, drug companies don't know whose drugs are being used, don't know the chain of custody of those drugs, and whether they have had proper storage, transportation and refrigeration.

There can be no reasonable court assessment of what's going on.

"I can't think of any other area of law where when one side makes relevant evidence unavailable, it's given the benefit of the doubt about the evidence," he said. 

The Death Penalty Information Center's report says secrecy in state protocols and practices ultimately prevent the public from knowing the extremes to which its state governments are resorting to carry out the most severe and irreversible punishment. 

Democracies die behind closed doors, said Judge J. Damon Keith, U.S. Court of Appeal for the Sixth Circuit, in the report. 

"When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation," he said.

Reach the writer at 402-473-7228 or

On Twitter @LJSLegislature.


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