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In February 2008, the Nebraska Supreme Court held in State v. Mata that Nebraska’s electrocution procedure violated the Nebraska constitution’s prohibition against cruel and unusual punishment. Mata left Nebraska in the curious position of having the death penalty on the books without a constitutional method of executing death sentences. In December 2008, Nebraska Attorney General Jon Bruning submitted a report to the Governor recommending that Nebraska adopt lethal injection as a new means to carry out a sentence of death. General Bruning’s report included LB 36, a proposed statute that would institute lethal injection in Nebraska.
On January 29, 2009, the Judiciary Committee of the Nebraska legislature conducted hearings about LB 36 and LB 306, a competing bill that proposed repealing the death penalty in Nebraska and replacing it with life imprisonment without the possibility of parole. Several lawyers, doctors, professors, and other citizens (including former Nebraska Senator Ernie Chambers) testified on either or both bills. I was among the people who testified on LB 36 (the lethal injection bill). Specifically, I argued that LB 36 contained several provisions that would insulate Nebraska’s lethal injection procedure from democratic review and would therefore risk creating a flawed, dangerous procedure. I am attaching here my written testimony from that day.