Outside the Beltway

Nebraska Could Be The Next State To Repeal The Death Penalty

The largely conservative state of Nebraska seems to be on the verge of repealing its law authorizing capital punishment.

Doug Mataconis · Tuesday, May 19, 2015 · 8 comments

The largely conservative state of Nebraska has become the unlikely focus in the battle to end the death penalty:

LINCOLN, Neb. — The Nebraska Legislature will decide in the next several weeks whether to do what no other conservative state has done in more than 40 years: Abolish the death penalty.

In the latest sign that vigorous support for capital punishment can no longer be taken for granted among Republicans, a coalition of Republican, Democratic and independent lawmakers has backed a bill that would replace capital punishment with life imprisonment. Its members cite reasons that range from fiscal and practical to ideological.

On Friday, the unicameral Legislature voted in favor of the bill, 30 to 16, after four hours of debate. A final vote is likely this week, and if the lawmakers approve the measure again, as is expected, it will go to Gov. Pete Ricketts, a Tea Party Republican and strong supporter of capital punishment. The governor has said he would veto the bill, setting up a potentially fierce campaign to override him.

In a statement after the vote, Mr. Ricketts said the repeal vote “puts the safety of the public and Nebraska families at risk.”

“The death penalty in Nebraska remains an appropriate tool in sentencing the most heinous criminals,” he added.

But the Republicans who support repeal say they are part of an emerging group that has changed positions on the death penalty, forming what they hope is a compelling conservative argument against it.

Those Republicans have argued that the appeals process for inmates sentenced to death has left the state with unnecessary costs, money that should be spent elsewhere. They have spoken of the botched execution in Oklahoma last year and the difficulty in procuring the drugs for lethal injections. (The electric chair was outlawed in Nebraska in 2008 when the State Supreme Court declared the method unconstitutional.) Some lawmakers have also pointed to the fact that Nebraska has not executed an inmate since 1997, leaving family members of crime victims waiting interminably for resolution. Eleven inmates are on death row.

Senator Colby Coash, a conservative who is a sponsor of the bill, said he had come to believe that opposing capital punishment aligned with his values as a Republican and a Christian conservative.

“I’m a conservative guy — I’ve been a Republican my whole life,” he said in an interview. “A lot of my conservative colleagues have come to the conclusion that we’re there to root out inefficient government programs. Some people see this as a pro-life issue. Other people see it as a good-government issue. But the support that this bill is getting from conservative members is evidence that you can get justice through eliminating the death penalty, and you can get efficient government through eliminating the death penalty.”

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Lawmakers in other conservative states have made their own efforts this year to abolish capital punishment. In Montana, a bill to ban the death penalty passed the Senate but encountered opposition in the House. A vote there ended in a tie, 50 to 50, effectively killing the bill.

A bill introduced in the Kansas Legislature this year is in committee, and it is unclear whether it will advance to a vote.

The Midwest has historically been a stronghold of opposition to the death penalty, which has been outlawed in Iowa, Michigan, Minnesota, North Dakota and Wisconsin.

Eighteen other states have banned the death penalty, and Nebraska has tried before. In 1979, a bill to do so passed the Legislature but was vetoed by the governor, and lawmakers failed to override his veto. In 1999, the Legislature passed a moratorium on the death penalty, citing concerns that it had been applied unfairly. That bill was also vetoed by the governor.

Nebraska is unique among the states in that it has a non-partisan unicameral legislature, however of the forty-nine members of the body, the vast majority are members of the Republican Party as is, of course, the Governor. That, perhaps, is the most unique and interesting thing about the current debate in Lincoln since it has typically been states where the Democratic Party has been in control of legislature where death penalty repeal has been successful. In this case, we have thirty members of the body voting in favor of repeal in the most recent votes, which was the second of three votes that a bill must undergo before it is sent to the Governor for signature or veto. This is a significant number because of Governor Ricketts’ threat to veto the bill when it comes to his desk. In that event, the bill then returns to the legislature for their attempt to override the veto, and in order to do so they will need thirty votes in favor of an override. If the thirty vote coalition that voted in favor of the bill in its most recent reading holds together, that would be sufficient to override the Governor’s veto and the death penalty would be repealed in the State of Nebraska.

Given its conservative political culture, one might think that Nebraska is an unlikely place where we would see bipartisan opposition to capital punishment, however at least two factors that suggest otherwise. First, while the death penalty is legal in Nebraska and there are presently eleven people on Death Row there, the state has actually only executed three people since the U.S. Supreme Court reinstated the death penalty in 1976 and the most recent execution was eighteen years ago. (Source) This suggests that Nebraska is one of those many American states where, while the death penalty is legal and has been imposed as sentence, it is rarely if ever carried out, meaning that repealing the law would not be a significant shock to the political or legal system. Second, there have been many indications in recent years that public support for the death penalty is slipping and Nebraska residents are likely part of that trend. Most recently, for example, an ABC News/Washington Post poll found for the first time that a majority of Americans supported a sentence of life in prison without parole over the death penalty. Other polling has found that, while a majority of Americans continue to believe that the death penalty is morally acceptable, that number is down from where it was in the past and the trend suggests support will continue to shrink further. At the time the ABC poll was released, I noted that the real test would be whether we saw movement in the states to actually repeal capital punishment laws, with the proviso that it would be unlikely to happen in states such as Texas and Oklahoma that lead the nation in executions. Nebraska, however, seems to be on the verge of taking that step and how the debate in Lincoln in ultimately resolved could have implications far beyond the borders of one state.