Nebraska: They shoot horses, don't they?

Although I can hardly call myself prescient for anticipating that this would be a difficulty after the Nebraska Supreme Court made the long-overdue move to determine that the electric chair is cruel and unusual, it has finally happened.

And, wouldn't you know, Jon Bruning is trying to do things that the legislature will not, just ipse dixit (he thinks he's governor, even though he has been thwarted at all his turns, by Dave Heinemann, Tom Osborne, and the fact that Jon Bruning is from outside of Omaha, which really cuts into his political efficacy). He is trying to say that people on death row can still be executed, just not by electrocution.

As usual, Jon Bruning is dead wrong.

1) The Nebraska Supreme Court struck down electrocution as a method of execution in the state of Nebraska in the case of State v. Mata (underwhelming opinion would be attached here, but I can't find it at the moment, and I'm lazy).
2) The legislature had not provided an alternative in the event of such a ruling (as opposed to Georgia, where the George Supreme Court struck down electrocution and everyone on death row just got penciled in for a lethal injection appointment).
3) The Nebraska unicameral has twice called for the death penalty to stop and been blocked by gubernatorial veto. Once, in 1979, the state actually voted to eliminate the death penalty. Then-governor Charles Thone vetoed it. In 1999, the unicameral voted for a moratorium on the death penalty, which Governor (until recently, Secretary of Agriculture, apparently anticipating a need for fertilizer?) Mike Johanns vetoed it.
4) Jon Bruning already fought this battle in the Unicameral and lost. He fought to change the method of execution in the state of Nebraska to lethal injection, fearing that electrocution would be ruled unconstitutional. Blocked primarily by death penalty abolitionists -- people who thought (rightly) that maintaining electrocution would mean Nebraska would simply refuse to execute people or be unable to carry out a death sentence -- he lost and Nebraska remained the only state in the United States with electrocution as its sole method of execution. No dispute about legislative intent.
5) Sentencing orders often stipulate a method of execution. There can be no doubt that you're entitled to rely upon a sentencing order. If your sentencing order says you're in a federal penitentiary, they can't ship you off to state prison. If your sentencing order says 20 years, they don't get to keep you for 30. And if your sentencing order says "death by stoning" and stoning is invalidated, you don't just get to white out the "by stoning" part and start anew with whatever punishment you can concoct.
6) The legislature has still not stipulated a method of execution, so even if you were to argue that those whose sentencing orders did not specify electrocution were still subject to the death penalty (and I would argue that the precedent the Supreme Court set in Furman v. Georgia indicates that no one in Nebraska should be regarded as under a death sentence unless they were convicted after the Nebraska Supreme Court ruling in State v. Mata), you definitely don't get to execute anyone unless you can figure out how to do it with pure confusion.
7) Incidentally, the Nebraska Supreme Court disagrees with me on the last point, having reaffirmed Raymond Mata's death sentence while stating that his execution by electrocution would be unconstitutional. However, the Court also assumes that the method-of-execution statute is entirely severable from the procedures by which the court sentenced Mata. Of course, if Mata's sentencing order said "death by electrocution", you really have to be willfully blind to actually believe that to be the case.
8) I absolutely love that CNN reports Nebraska would consider the gas chamber. The gas chamber itself has already been struck down in courts and is used as the sole method of execution in zero states. While it would stand up in the Roberts court, which has prescribed a new analysis of the Eighth Amendment that essentially writes it out of existence, I have serious doubts that the Nebraska Supreme Court would accept it as an alternative, and I suspect it may be the only alternative the unicameral WILL support, given its tendency to staunchly limit the death penalty rather than put in an express lane to the death house.

Lastly, a note to CNN, I don't give a damn what the parents of victims have to say about the Eighth Amendment. JoAnn Brandon, if you want revenge, then do it. Go and gun down your daughter's murderers during the middle of their trial, and you can feel vindication and know that you're little better than the people who killed your son or daughter. If JoAnn Brandon wants to watch the killers of her daughter suffer, then she is free to do whatever she can to make that happen and will be punished accordingly. But CNN, don't put in your bloody-shirt waving into an article about an amendment that is supposed to make our government a more reasoned body than its individual components. No one disputes that murderers deserve to be punished harshly. But it's not the state's job to exact anyone's revenge, and if that's what you think they're doing, then you need to pay the costs of this execution, which are enormous. I know many would disagree, but it's not the state's job to be killing people, regardless of whether it involves torture.