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Nebraska Just Became The First State to Use Fentanyl in an Execution

MARK BERMAN, THE WASHINGTON POST
16 AUG 2018

Authorities in Nebraska used the powerful opioid fentanyl in a lethal injection on Tuesday, an unprecedented move that came as the state - where just three years ago lawmakers moved to abolish capital punishment - completed a remarkable reversal and resumed executions for the first time in nearly a generation.

 

Nebraska experienced a series of firsts on Tuesday morning: the state's first execution in 21 years, its first lethal injection and the country's first death sentence carried out with fentanyl, a synthetic painkiller that has helped drive the opioid epidemic. 

The execution was even more unusual given the state's very recent history, which saw its legislature vote to abandon the death penalty in 2015 before voters reversed that decision the following year.

At the center of this was Carey Dean Moore, the 60-year-old inmate executed after spending more than half his life on death row.

Moore was sentenced to death for killing Reuel Van Ness and Maynard Helgeland, two Omaha cabdrivers, in 1979. He said before his execution that he would not try to stop it, nor did he want anyone to intervene.

Moore was executed at the state penitentiary in Lincoln, the capital.

The execution drew an unusual amount of attention, in large part because authorities chose to utilize fentanyl even as law enforcement officials are aggressively trying to get the potent drug off of the streets and highlighting its role in the ongoing opioid crisis.

 

The state's plan called for it to use four drugs in total, two of which prompted a recent lawsuit from a drug company arguing Nebraska was going to use its products and unsuccessfully trying to block Nebraska from using them.

The first drug was injected into Moore at 10:24am and the coroner announced his time of death at 10:47am, according to Scott R. Frakes, director of Nebraska's Department of Correctional Services, who read a statement after the execution.

Moore's case wound its way through the court system for nearly four decades, ever since the August 1979 slayings of Van Ness and Helgeland, both taxi drivers and Korean War veterans.

Relatives of the men have said they were ready for an outcome in the case.

"Thirty-eight years has been long enough," Richelle Van Ness-Doran, Van Ness's daughter, recently told the Omaha World-Herald. "It's just prolonging this … it's like a slap in our face."

Among the witnesses to Moore's execution were four people he chose to attend - who included his twin brother, his lawyer said - and four members of the news media.

 

Moore had faced execution warrants before Tuesday. He also appeared, albeit briefly, to be heading toward a sentence of life in prison when the Nebraska legislature voted to ban the death penalty in 2015.

The move was a dramatic shift for a cherry-red state. Lawmakers voted to override a veto from Gov. Pete Ricketts (R), who sharply criticized the decision.

A group with considerable financial backing from Ricketts and his family then pushed to have the issue added to the statewide ballot in 2016, when 60 percent of voters chose to restore capital punishment.

A spokesman for Ricketts did not respond to a request for comment about the execution. Nebraska Attorney General Doug Peterson's office said in a statement that the "somber event serves to provide a measure of closure for what has been a lengthy enactment of justice."

In a handwritten statement from Moore disseminated after the execution, he acknowledged his guilt and called on "those out there who are against capital punishment" to focus on people he said are innocent on Nebraska's death row.

He signed the letter "Carey Dean Moore, ex-Death Row Inmate."

 

Journalists who attended the execution played a recording of Moore's remarks to witnesses beforehand, during which he referred to that handwritten letter as "all that I have to say."

Whether Moore would be executed on Tuesday as scheduled was thrown into question last week when the drug company Fresenius Kabi filed a federal lawsuit accusing Nebraska of obtaining what it believed were two of its products "through improper or illegal means."

The lawsuit was the third of its kind from drug manufacturers and distributors seeking to keep their products away from executions.

Under Nebraska's plans, one of the drugs cited in the lawsuit, potassium chloride, was meant to stop Moore's heart. Another drug, cisatracurium besylate, would paralyze his muscles.

Nebraska's plans also called for officials to use diazepam, a sedative better known as Valium, along with  fentanyl to render Moore unconscious.

Nebraska officials said they obtained their drugs legally and legitimately - and also argued they were facing a ticking clock in Moore's case. With drug companies' objections to their products being used in executions helping cut states off from the chemicals they want to use to carry out death sentences, Nebraska officials said their supply of potassium chloride expires at the end of August and they do not have a way to obtain more.

A federal district judge ruled against Fresenius Kabi last week. After a circuit court panel on Monday rejected the company's appeal, the firm said it would not seek further appeals in the case.

The lawsuit - and Nebraska's claims that it had essentially one narrow window to carry out this lethal injection - speaks to how dramatically the landscape for American capital punishment has transformed since Moore was sentenced in 1980.

Death row populations swelled and executions became more frequent until both began to decline. More states abandoned the death penalty, with seven of the 19 states without it dropping the practice since 2007.

In recent years, as the states seeking to carry out death sentences have hit roadblocks in their attempts to obtain drugs, some states have turned to other methods of execution, including nitrogen gas or firing squad. Others still have looked instead to untested drug combinations.

Nebraska is one such state, announcing plans to use fentanyl in its execution, something Nevada also adopted. Last month, Nevada was hours away from being the first state to use fentanyl in an execution when a lawsuit filed by another drug company prompted a judge to halt the lethal injection.

Experts said the choice to use fentanyl in an execution pointed to a state's desperation to find drugs.

"There's no particular reason why one would use fentanyl," said Robert Dunham, executive director of the Death Penalty Information Center, a Washington nonprofit group.

"No one has used it before, and we've had hundreds and hundreds of executions by injection. That suggests that the state is using fentanyl because it can get its hands on it."

State officials in Nebraska have not elaborated on how they chose fentanyl, but they suggested their options in purchasing execution drugs were extremely limited.

"Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain," Frakes, the state's corrections director, said in an affidavit filed in federal court.

Frakes laid out his efforts to find execution drugs to illustrate this, describing how he contacted at least 40 suppliers and a half-dozen other states seeking drugs. Just one source - whom he identified only as "a licensed pharmacy in the United States" - would provide them, he said, and won't sell any more.

"Here we have a state that hasn't executed in a very long time, it's using a four-drug formula, it's the first time the state is using lethal injection," said Deborah W. Denno, a Fordham University law professor and a death-penalty expert.

"I don't think Nebraska wins points by going down this route in the long run."

Before the execution, Moore had unsuccessfully tried to dismiss his lawyers as part of his effort to let it take place.

"He didn't want to have a lawyer because he didn't want to fight the death penalty," Jeffery A. Pickens, chief counsel of the Nebraska Commission on Public Advocacy and an attorney for Moore, said in an interview before the execution.

Pickens had also tried and failed to withdraw as Moore's attorney because he felt there was "a conflict of interest" between following his client's wishes and providing competent representation.

In particular, Pickens said, there were filings that would have extended the legal proceedings beyond the looming expiration date for one of the drugs. Pickens listed these options in court filings, including a suit asking where Nebraska obtained its drugs, a challenge to "this experimental protocol" the state was using and another focused on "the nearly 38 year unconstitutional delay in executing him."

Pickens, who is opposed to the death penalty and was not a witness to the execution, was blunt about where he stood on the case.

"I don't want to see Carey Dean Moore die," he said before the lethal injection took place. "I don't want him to be executed."

Danielle Conrad, executive director of the ACLU of Nebraska, said in a statement that Moore's 38-year journey to the death chamber "further proves what we've been saying all along … the death penalty in America is a broken process from start to finish and should be abolished nationwide."

As rain fell on the penitentiary Tuesday morning, Vivian Tuttle, whose daughter was among five people killed in a Nebraska bank in 2002, stood outside with Pierce County Sheriff Rick Eberhardt to show support for the death penalty. The rain had increased to a downpour by the time word arrived that Moore had been executed.

"This isn't easy for anyone," Eberhardt said of the execution. "But it's justice."

Ted Genoways in Lincoln, Neb., contributed to this report, which was first published at 6 am and updated throughout the day Tuesday.

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This article was originally published by The Washington Post.