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Nebraska becomes the first state to use fentanyl in an execution

Nebraska's state flag. Image from Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Nebraska.svg

Authorities in Nebraska used the powerful opioid fentanyl to carry out a death sentence on Tuesday, August 14, an unprecedented move that came as the state - which just three years ago saw lawmakers move 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, which has helped drive the opioid epidemic. The execution was even more unusual considering 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 two Omaha cabdrivers in 1979. He said before the execution that he would not try to stop it, nor did he want anyone to intervene.

Nebraska had scheduled Moore's execution to begin at 10 a.m. local time at the state penitentiary in Lincoln, the capital. The state's plan called for it to use four drugs, two of which prompted a recent lawsuit from a drug company arguing Nebraska was going to use its products. The company unsuccessfully asked a judge to block the state from using those drugs.

The first drug was injected into Moore at 10:24 a.m and the coroner announced his time of death at 10:47 a.m., corrections officials said.

Moore's case wound its way through the court system for nearly four decades, ever since the August 1979 slayings of Reuel Van Ness and Maynard 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."

Nebraska corrections officials said Moore's execution was witnessed by four members of the news media, four people Moore chose to attend and one family member representing the victims.

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 Republican Gov. Pete Ricketts, who had strongly 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, where 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."

Nebraska's 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 drug off of the streets amid the ongoing opioid crisis.

Moore sought to dismiss his attorneys in the case as part of his efforts to allow the execution to proceed.

"He didn't want to have a lawyer because he didn't want to fight the death penalty," Jeffery 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 unsuccessfully tried 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, he could have filed things that would have extended the legal proceedings beyond the looming expiration date for one of the drugs involved. 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."

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 lethal injection drugs "through improper or illegal means." The company said it believed two of its products were going to be used to execute Moore.

One of the drugs cited in the lawsuit, potassium chloride, was meant to stop Moore's heart under Nebraska's protocol. Another drug, cisatracurium besylate, would paralyze his muscles. Nebraska's execution plans also call for officials to use diazepam, a sedative better known as Valium, and fentanyl to render Moore unconscious.

Nebraska officials argued they obtained their drugs legally and legitimately. The officials also said they had no backup option to obtain more, adding that they were facing a ticking clock because the state's supply of potassium chloride expires at the end of August.

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. Peterson's office declined to comment on the ruling.

The lawsuit - and Nebraska's claims that it essentially has 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. 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.

And in recent years, the states seeking to carry out death sentences have hit roadblocks in their attempts to obtain drugs, a situation fueled by drug companies' objections to their products being used in capital punishment. In response, some states have turned to other methods of execution, including nitrogen gas or the 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.

The choice of fentanyl for an execution points to a state's desperation to find drugs, experts said.

"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," Scott Frakes, director of Nebraska's Department of Correctional Services, wrote 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."

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. The rain had increased to a downpour by the time word arrived outside that Moore had been executed.

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

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This article was written by Mark Berman, a reporter for The Washington Post.

The Washington Post's Ted Genoways in Lincoln, Neb., contributed to this report.