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Archive for January, 2015

Nebraska law professor: Lethal injection changing; Supreme Court could set new rules

Tuesday, January 27th, 2015

Eric Berger, a University of Nebraska law professor who has litigated and studied  lethal injection, says the U.S. Supreme Court may use a new case arising out of Oklahoma to clarify the legal standard governing challenges to lethal injection procedures.

Because of several botched executions and difficulties in obtaining drugs, many states, including Oklahoma, have changed execution protocols since 2008, when the Supreme Court in Baze v. Rees upheld lethal injection.   Some states have gone to only one or two drugs. Others are trying new drug combinations and refusing to identify their suppliers of execution chemicals.

“Several states, if not all have changed procedures since the Baze decision,” Berger  said. “The question presented in the new Supreme Court case is how the Baze standard should apply in procedures different than the one at issue in Baze.”

Further compounding the problem, many states conceal crucial details of their execution procedure. In a paper recently published in the Boston College Law Review, Berger discusses the due process implications of states’ secrecy over lethal injection protocols.

“Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review.”

On Jan. 23, the U.S. Supreme Court agreed to hear Glossip v. Gross,  a case contending that  Oklahoma’s current lethal injection procedure violates the  Eighth Amendment ban on cruel and unusual punishment.

The case involves three inmates who argue that Oklahoma’s three-chemical procedure posed a significant risk of terrible suffering. One of the three was scheduled to be executed Thursday, but Oklahoma’s Attorney General has requested a delay while the U.S. Supreme Court reviews the case.

A fourth inmate involved in the case, Charles Warner, was executed Jan. 15.  The Supreme Court declined to delay his execution just days before announcing it was granting review in the case.  A case can be accepted with the vote of four justices, but it take five to delay an execution.

As a private practice attorney, Berger was involved in two death penalty cases, one of which was decided by the U.S. Supreme Court.  In Hill vs. McDonough, a Florida case decided in 2006, the Supreme Court confirmed that inmates may challenge the constitutionality of lethal injection using a civil rights statute. Berger also worked on Taylor vs. Crawford, which challenged the constitutionality of  Missouri’s lethal injection procedure. The court in that case became the first trial court to hold unconstitutional a state’s lethal injection procedure.  The 8th U.S. Circuit Court of Appeals subsequently reversed that decision and upheld Missouri’s procedure in 2007.

Berger has continued to study lethal injection since joining the UNL faculty in  2007. He can be contacted at eric.berger@unl.edu or 402-472-1251.

Expert alert: Would President Obama’s community college proposal accomplish its aims?

Friday, January 16th, 2015

The success of President Obama’s proposal to provide two free years at community college depends upon whether it will truly eliminate the barriers that keep students from attending, says Brent Cejda, a former community college administrator who serves as chairman of the Department of Educational Administration at the University of Nebraska-Lincoln.

“It all boils down to one thing: What can the money be used to pay for?”  Cejda said.

Cejda (pronounced Shay-duh) developed and implemented UNL’s community college leadership certificate program and served for nine years as executive director of the National Council of Instructional Administrators, an affiliate council of the American Association of Community Colleges.

He is a past president of the Council for the Study of Community Colleges, which recognized him in 2002 with an emerging scholar award and in 2014 with a senior scholar award. He is principal investigator of a National Science Foundation grant, “Developing Undergraduate Research at Community Colleges: Tapping the Potential of All Students,” which has involved more than 100 community colleges in designing research experiences for community college students.

He is available to discuss the implications of President Obama’s proposal, part of the State of the Union address to be delivered Tuesday.

“Education, everyone understands, is the key for success for our kids in the 21st century,” President Obama said when he announced the proposal earlier this month. “It’s not just for kids. We also have to make sure everybody has the opportunity to constantly train themselves for better pay, better jobs, better benefits.”

The proposal calls for the federal government to pay 75 percent of the average cost of community college, with states providing the remainder . The cost to the federal government is projected to be more than $60 billion over 10 years.

Obama said his proposal, if implemented in all 50 states, would save full-time community college students an average of $3,800 per year in tuition. IT would benefit about 9 million students per year.

Cejda said that for most low-income students, federal Pell grants pay for most or all of community college tuition.

Transportation and child care expenses are the two major barriers that prevent students from being able to go to community college, he said.

“Unless it helps in that regard, the program may not provide additional benefit to low-income students,”  he said.

Cejda said other challenges arise because of the differing financing systems for community colleges. In about half the states, including Nebraska, property taxes or other local taxes help support community colleges, thus lowering tuition costs.

Legislatures in those states may be more willing to sign up for Obama’s program because the price tag for the required 25 percent state match would be smaller.

However, states where community colleges rely more heavily on tuition would have to pay more to participate.

Cejda’s community college experience began as an instructor at Butler Community College in Kansas. He later became an administrator at Butler and held administrative appointments at Edison State Community College in Ohio and Highland Community College in Kansas.

He can be reached for interviews at 402-472-0989 or 402-525-3352 (cell).  His email is bcejda2@unl.edu.