Three times in the past four years, Nebraska prosecutors have sought death sentences, and each time they have been successful. Within a couple months, two more people convicted of a grisly murder could also be sentenced to death.
But as the state adds to its death row population, the lawyers, judges and prison officials who oversee Nebraska's system of capital punishment largely ignore the fact that the state has no lethal injection drugs and very likely won’t get any for years, if ever. Those sentenced to death have a better chance of dying of natural causes than being executed.
While the nation remains divided over capital punishment, Nebraska stands out for its peculiar version of the institution: it's still wedded to the idea of executing prisoners, just not the practical part of doing it. The state is among a handful caught in a law vs. reality netherworld as legislatures and activists wrestle over how the issue will eventually play out.
As the Rev. Stephen Griffith, a leading anti-death penalty activist, put it, “We’re being duplicitous, really. We say Nebraska has a death penalty when, functionally, we don’t.”
Twenty-seven states allow capital punishment, but many have struggled in recent years to obtain the drugs used to execute inmates because most manufacturers now refuse to openly supply them. While 12 other states responded to the hesitancy by keeping their suppliers secret, Nebraska's Supreme Court threw out its secrecy policy after the state executed an inmate in 2018.
Corrections director Scott Frakes told a legislative committee that unless Nebraska is allowed to hide supplier names, the state likely would never be able to obtain the necessary drugs.
“Once we get done with the trial and sentencing, it’s kind of off our shoulders,” said Douglas County Attorney Don Kleine, who has sent four men to death row during his 14-year tenure, none of whom have been executed. “Certainly, it seems to be the case right now that the state doesn’t have the wherewithal to carry it out.”
The standoff over execution drugs reflects a longstanding ambivalence toward capital punishment in Nebraska. Even before the drug issue, the state didn't carry out many executions, and legislators in 2015 voted to abolish the death penalty, in part because it costs the state an estimated $15 million annually to prosecute and offer special housing to death row inmates.
But after Gov. Pete Ricketts helped pay for a petition drive to put the issue on the ballot, voters overwhelmingly reinstated the death penalty.
Matt Maly, a conservative activist who opposes capital punishment on moral and fiscal grounds, said many Nebraskans still support capital punishment, but they’re not especially passionate about the issue. Given that, politicians are willing to keep it on the books but not actually carry out executions.
“It’s not something you’re hearing about in coffee shops or grocery stores,” Maly said. “The legislature could have said, ‘Let’s do what it takes to make this happen,’ but they don’t have the will to do that.”
Still, the end of executions doesn't mean an end to the death penalty process. Prosecutors keep seeking death sentences, and judges have condemned three more inmates since the capital punishment reinstatement vote in 2016. Nebraska’s death row now has 11 inmates after one died in early April of natural causes.
Nationally, executions have resumed after the struggle over drug supplies but are nearing record lows, according to the Death Penalty Information Center, a group that tracks executions. Seventeen inmates were put to death in 2020, down from a high of 98 in 1999.
Texas and Georgia, both leading death penalty states, now have periodic executions. Tennessee has executed seven inmates in the last three years, including one in 2020. Several states are still working through legal challenges, including Oklahoma, which suspended executions after injection problems in two cases. A few states have given up, like Virginia, which dropped capital punishment in March.
Robert Dunham, the Death Penalty Information Center's executive director, said many states seem to show “inertia” with the death penalty.
“If you have a jurisdiction in which death sentences haven’t been imposed, people either forget how to do it or they sort of realize they don’t miss it and they don’t tend to push for it,” he said. “But once they do it and it becomes a part of the culture, they tend to do it again and again and again.”
All of Nebraska’s current death-row inmates were convicted of either murdering multiple people or a child, and each case includes aggravating factors, such as sexual assaults, cover-ups of other crimes or dismembering bodies.
Lancaster County Sheriff Terry Wagner said that if drugs are a problem, lawmakers should consider other execution methods, such as firing squads.
“There are some crimes that are so heinous, so evil, that they deserve the death penalty,” Wagner said.
Kleine, the Douglas County attorney, said he’ll continue to pursue death sentences out of respect for the voters who chose to keep capital punishment.
“It’s not an easy decision to seek the death penalty, but right now it’s a law on the books, and if we feel the circumstances are appropriate, that’s what we’ll do,” he said.