Orrick Pro Bono Team Joins ACLU in Legal Challenge to Nebraska Execution Procedures

An Orrick pro bono team and the American Civil Liberties Union of Nebraska filed a lawsuit today challenging the state’s execution protocol, asserting that state officials hastily developed new execution procedures in violation of Nebraska’s Administrative Procedure Act. The lawsuit was filed on behalf of State Sen. Ernie Chambers and Rev. Stephen Griffith.

The lawsuit, filed in Lancaster County District Court, alleges that the state of Nebraska in January 2017 approved a flawed execution protocol developed by the state Department of Corrections Services without adequate public review and in violation of the due process clause of the Nebraska state Constitution. The plaintiffs seek an injunction blocking the execution procedure from moving forward until the state enacts regulations in compliance with the APA and which provide adequate opportunity for public input and review.

“The NDCS promulgated this very important protocol, upon which lives literally depend, on a single try and without making any drafts or working copies at all, and without consulting any public or private experts,” the lawsuit states.

The challenge to the execution protocol comes at a crucial time for Nebraska, which is preparing for its first possible executions in more than 20 years. The new procedures include major revisions to the drugs to be used in executions, adopted in a cloak of secrecy without input on whether they pose the possibility of a cruel and inhumane death for condemned inmates.

Nebraska is one of a number of states that have rushed to install new execution procedures in violation of their respective state administrative rules.

The ACLU of Nebraska has already presented serious evidence that state prison officials may have violated federal law in how they obtain execution drugs. Last week, Sen. Chambers, a plaintiff in today’s lawsuit, filed a formal complaint with the state Legislature asserting that the lethal injection protocol is unconstitutional.

“We are proud to partner with the ACLU on such an important case that rests on ensuring the state of Nebraska follows the rule of law when the stakes are life and death,” said Rene Kathawala, Pro Bono Counsel for Orrick. “This lawsuit is designed to make sure the state does follow the rule of law. We simply want the state to take a step back and consider the consequences of developing a procedure in haste and that is clearly flawed.”

In addition to Rene, the Orrick pro bono team includes associates Suzy Barnes and David Litterine-Kaufman.