Nebraska: Electric Chair Is "Torture"

** ADVANCE FOR SUNDAY DEC. 24 ** This file photo from 1988 shows the Nebraska electric chair. In a pre-session survey by The Associated Press, 29 lawmakers said they support the death penalty. Six said capital punishment should be repealed. Nine were unsure or gave no answer and five did not participate on the survey. But 27 senators said they favor a move to lethal injection, which is the preferred method of execution in 37 states. Nebraska is the only state that requires use of the electric chair. Six senators said electrocution should continue as the method of execution, and 11 were unsure or gave no answer. (AP Photo/Lincoln Journal Star, Harald Dreimanis) AP/H. Dreimanis, Journal Star

A year ago, Carey Dean Moore wrote a short letter to the Nebraska Supreme Court from his cell on death row.

"Appellant wishes to be executed," it said.

On Friday, the court said electrocution is unconstitutional, a stunning response to Dean, nine others on death row and those who question whether the electric chair constitutes cruel and unusual punishment.

"Condemned prisoners must not be tortured to death, regardless of their crimes," Judge William Connolly wrote in the 6-1 opinion for the court.

The decision erased Nebraska's distinction as the only state with electrocution as its sole means of execution. State courts are left with the ability to sentence people to death but no way to carry out the penalty.

The high court made the ruling in the case of Raymond Mata Jr., convicted for the 1999 kidnapping and killing of 3-year-old Adam Gomez of Scottsbluff, the son of his former girlfriend. Parts of the boy's body were found at Mata's home in a freezer and dog bowl. Bone fragments also were recovered from the stomach of Mata's dog.

The court said in its opinion that evidence shows that electrocution inflicts "intense pain and agonizing suffering" and that it "has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein" than a state prison.

From the conclusion of State v. Mata:
"Mata's sentence of death is affirmed. But under our system of government, while the Legislature may vote to have the death penalty, it must not create one that offends constitutional rights. We recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes.

"And the evidence clearly proves that unconsciousness and death are not instantaneous for many condemned prisoners. These prisoners will, when electrocuted, consciously suffer the torture that high voltage electric current inflicts on the human body. The evidence shows that electrocution inflicts intense pain and agonizing suffering. Therefore, electrocution as a method of execution is cruel and unusual punishment in violation of the Nebraska Constitution, article I, § 9. And, without a constitutionally acceptable method of execution, Mata's sentence of death is stayed."
There are conflicting views on whether federal courts might agree to hear an appeal. Attorney General Jon Bruning said he would ask the state court to reconsider its decision, and spokeswoman Leah Bucco-White said, "We're exploring all our options."

Gov. Dave Heineman's spokeswoman, Jen Rae Hein, said Heineman is considering introducing a bill this legislative session to replace electrocution with lethal injection.

"Today the court has asserted itself improperly as a policymaker," Heineman said. "Once again, this activist court has ignored its own precedent and the precedent set by the U.S. Supreme Court to continue its assault on the Nebraska death penalty."

The state's high court said electrocution violated the Nebraska Constitution rather than the U.S. Constitution, a move that one expert on death penalty law said appeared to shield its decision from federal review. But Chief Justice Mike Heavican wrote in dissent that the majority's stated reliance on Nebraska's constitution is misleading because the court based its decision entirely on federal precedent.

The court stressed that its ruling did not strike down the death penalty - just electrocution as the method. Approving another method, however, could prove difficult.

Past attempts to replace electrocution with lethal injection in Nebraska have failed, largely due to the efforts of the Legislature's staunchest opponent of capital punishment, Sen. Ernie Chambers of Omaha.

Chambers pointed out Friday that a bill to replace the execution method would have to be approved by the Judiciary Committee. That's unlikely, he said, given that on Thursday the committee sent to the full Legislature a bill that would repeal the death penalty.

"It would be stupid and a waste of time and strictly for political purposes to introduce a bill to replace electrocution with lethal injection," Chambers said.

Last year, a state bill to repeal the death penalty failed after first-round debate by just one vote. Bills must go through three rounds before they get final approval.

Legal experts said it doesn't make sense for Nebraska to rush to establish a new method of execution.

Courts across the country have put off several executions pending a decision by the U.S. Supreme Court, which agreed in September to hear a challenge filed by two Kentucky death row inmates over that state's lethal injection method.

The use of the electric chair began to decline when Oklahoma adopted lethal injection in 1977, said Richard Dieter, executive director of the Death Penalty Information Center. Since 1976, when executions resumed following a U.S. Supreme Court ban, there have been 154 electrocutions and more than 900 lethal injections, Dieter said.

Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia still allow electrocution, but some of those states do not allow newly condemned inmates to choose it.

The last person to be executed by electrocution was Daryl Holton on Sept. 12. in Tennessee. Holton, who confessed to murdering four children in 1997, chose the electric chair over lethal injection.

Moore was to have been electrocuted in May, but the Nebraska Supreme Court stopped it less than a week before his scheduled date because of the case it ruled on Friday.

Press writers Oskar Garcia, Josh Funk and Eric Olson in Omaha, Neb., contributed to this report.
By Nate Jenkins
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