12 April 2007
UA 84/07 Death penalty / Legal concern
USA (Nebraska) Carey Dean Moore (m), aged 49
Carey Moore, white, is due to be executed in Nebraska's electric chair on 8
May. He was sentenced to death in 1980 for the murder of two men in Omaha in
August 1979. Carey Moore was aged 21 at the time of the crimes. He is now
He has given up his appeals. Nebraska has not carried out an execution for
Carey Moore was convicted of killing taxi drivers Reuel Eugene Van Ness and
Maynard Helgeland, both aged 47, after having called their cabs out to
remote locations. His death sentence was overturned in 1990 by the US Court
of Appeals for the Eighth Circuit on the grounds that one of the aggravating
factors making the crime punishable by death namely that it had shown
''exceptional depravity'' was unconstitutionally vague. The case was
subsequently remanded for re-sentencing. Despite a request by the state to
redefine what was meant by ''exceptional depravity'', the Nebraska Supreme
Court declined to do so. At the 1995 re- sentencing, the trial court
therefore constructed its own definition of the term, under which a number
of factors would be considered. This included whether there was ''cold,
calculated planning of the victim's death as exemplified by the purposeful
selection of a particular victim on the basis of special characteristics'
including age. Because of evidence that Carey Moore had deliberately picked
victims who were older than him, the three-judge panel decided that this
constituted ''exceptional depravity'' and sentenced him to death.
In 2003, this issue split the Eighth Circuit. Seven judges upheld the death
sentence, while six dissented. Noting that ''Moore was truly without prior
notice that age would become part of the 'exceptional depravity' calculus'',
the six dissenters argued that the re-sentencing court's ''post hoc
application of its newly-defined 'exceptional depravity'
for his life without any idea of what would guide the panel's decision''.
Sentencing under such circumstances, they argued, ''denies defendants due
process in the most basic sense, for they have no prior notice of the law to
be used against them''. Four of the judges also added that ''throughout the
entirety of this case, one thing has remained static: neither the Nebraska
Legislature nor the Nebraska Supreme Court has fashioned a death penalty
sentencing scheme that provides the sentencing body with a cogent,
meaningful basis for distinguishing the few cases in which the death penalty
is imposed from the many cases in which it is not''.
The phenomenon of prisoners giving up their appeals and ''volunteering'
execution contributes to the arbitrariness of the death penalty in the USA.
Given the rate of reversible error found in capital cases, if the more than
significant possibility that a number of them would have had their death
sentences overturned to prison terms by the appeal courts. Any number of
factors may lead a prisoner not to pursue appeals against their death
sentence, including mental disorder, physical illness, remorse, bravado,
religious belief, the severity of conditions of confinement, including
prolonged isolation and lack of physical contact visits, the bleak
alternative of life imprisonment without the possibility of parole,
pessimism about appeal prospects, being worn down by the cycle of hope and
despair generated by winning and then losing appeals, a quest for notoriety,
or simply a desire to gain a semblance of control over a situation in which
the prisoner is otherwise powerless. Rational or irrational, a decision
taken by someone who is under threat of death at the hands of others cannot
be consensual. What is more, it cannot disguise the fact that the state is
involved in a killing involving ''cold, calculated planning'', and is
contributing to a culture of violence. In this case, two children of one of
the murder victims have said that they do not want Carey Moore's execution
to go ahead. According to information received by Amnesty International,
they have said that they do not believe that justice requires another man to
Carey Moore has been facing execution for more than a quarter of a century.
The US Supreme Court has not ruled on whether prolonged confinement on death
row violates the US Constitution, but individual Justices have raised
In 1995, Justice Stevens wrote that executing a prisoner who had been on
death row for 17 years arguably negated any deterrent or retributive
justification for the punishment, supposedly the two main social purposes of
the death penalty. If these goals no longer existed, he suggested, the
outcome would be ''patently excessive and cruel''. In 1999, Justice Breyer
expressed concern in Carey Moore's case (and the case of an inmate on
Florida's death row for 24 years) at the ''astonishingly long delays flowing
in significant part from constitutionally defective death penalty
reflects the State's own failure to comply with the Constitution'
the claim that time has rendered the execution inhuman is a particularly
strong one.'' In 2002, in the case of a Florida inmate on death row for
about 27 years, Justice Breyer stated that if executed, the prisoner would
have been ''punished both by death and also by more than a generation spent
in death row's twilight. It is fairly asked whether such punishment is both
unusual and cruel.''
Amnesty International, which unconditionally opposes the death penalty in
all cases, believes that abolition is the only solution to the inherent
flaws of this cruel punishment. In Nebraska's legislative assembly in March
2007, a measure to abolish the state's death penalty failed by one vote
(25-24) to pass to the second of three stages.
Efforts to narrow the state's death penalty law are continuing in the
Since 1913, Nebraska's method of execution has been electrocution, and it is
now the only US state where this is the sole method. Nebraska's Department
of Correctional Services, which ''has no official opinion on the death
penalty'', states: ''One of the issues regarding the use of the electric
chair is whether the inmate feels any pain or discomfort when the execution
procedure is applied. Some experts would argue that the voltage applied
renders instant unconsciousness; others suggest that that is not the case''.
Of the 1,070 executions carried out in the USA since judicial killing
resumed in 1977, three have been in Nebraska, the most recent of which was
carried out on 2 December 1997. Today, 128 countries are abolitionist in law
or practice, more than 60 of which have been added to this list since Carey
Moore was first sent to death row.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in
your own words:
- expressing sympathy for the families of Reuel Eugene Van Ness and Maynard
Helgeland, explaining that you are not seeking to condone the manner of
their deaths, or to downplay the suffering caused;
- opposing the execution of Carey Moore, and the death penalty in general;
- noting that six federal judges dissented against Moore's death sentence in
2003 on the basis that he had been denied due process at his re-sentencing;
- noting that Carey Moore has faced execution for over two decades, and that
a number of US Supreme Court Justices have expressed concern about the
constitutionality of an execution under such circumstances;
- welcoming signs of increasing support for repeal or narrowing of
Nebraska's capital statute, and that the state has not carried out an
execution for a decade, during which time public support for the death
penalty has diminished in the face of compelling evidence of unfairness and
error in capital cases across the country;
- urging the Nebraska authorities to do all in their power to stop this
Governor Dave Heineman
Office of the Governor, P.O. Box 94848
Lincoln, NE 68509-4848
Fax: 1 402-471-6031
Email via: http://www.gov.
Salutation: Dear Governor
Attorney General Jon Bruning
2115 State Capitol
Lincoln, NE 68509
Fax: 1 402 471-3297
Email via: http://www.ago.
Salutation: Dear Attorney General
Secretary of State John A. Gale
1445 K Street, Suite 2300
Lincoln, NE 68508
Fax: 1 402 471 3237
Salutation: Dear Secretary of State
PLEASE SEND APPEALS IMMEDIATELY.
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information and stop action date (if applicable).
Thank you for your help with this appeal.
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END OF URGENT ACTION APPEAL