Death Penalty and Electoral Politics: The Nebraska Referendum Penn State Law Review Online Companion Penn State Law Review

Death Penalty and Electoral Politics: The Nebraska Referendum

For Nebraska voters, the 2016 election will be a matter of life and death.

Last year, the Nebraska State Senate, the only house in the Nebraska legislature, voted to eliminate the death penalty as the maximum penalty that the state could impose. Governor Pete Ricketts, a Republican, vetoed the bill but the legislature overrode his veto. While legislators don’t formally have party representation, Ballotpedia identified thirty-six of the body’s forty-nine seats as Republican-held. Thus, Nebraska became “the first conservative state to repeal the death penalty in more than 40 years”.

Death penalty supporters in the state began a ballot initiative to repeal the Senate’s override. After achieving the requisite number of signatures, the issue of whether to “repeal” or “retain” the override would be placed on the November ballot.

A vote to ‘Retain’ will eliminate the death penalty and change the maximum penalty for the crime of murder in the first degree to life imprisonment by retaining Legislative Bill 268 [.]

A vote to ‘Repeal’ will keep the death penalty as a possible penalty for the crime of murder in the first degree by repealing Legislative Bill 268 [.]

Because the language behind the referendum is confusing, the Nebraska Secretary of State released radio advertisements to clarify the measure, only to revoke them once death penalty opponents decried the commercials as misleading.

Governor Ricketts has been the most prominent supporter of the “repeal” side, advocating the deterrence value of the death penalty. “I am a strong advocate to keep the death penalty because it is a critical tool for law enforcement and criminal prosecutors to protect public safety”. Ricketts argues that capital punishment protects prison guards. “Without the death penalty, an inmate sentenced to life in prison has nothing to lose by taking the life of a corrections officer.”  The death penalty would also guarantee that no inmate convicted of first-degree murder can escape or be paroled. Ricketts also states that the death penalty will be used in a limited scope.

“Checks and balances in Nebraska ensure that the death penalty is used sparingly and applied justly, and rapid advancements in DNA technology will help to ensure accuracy in future cases.”

Opponents have pointed out that outlawing the death penalty makes budgetary sense. “The additional cost for a death penalty case is about $14.6 million, opposed to life without parole,” an Omaha economist reported.

“It’s the appeals process, again taking individuals in cases where there are hearings, you have to have individuals are taken back and forth to the hearing and costs such as that. The pretrial costs, jury selection. Think about jury selection in a death penalty case versus a non-death penalty or life without parole case. The jury selection is more intensive, it takes longer.”

Each side has advanced further critiques on whether the death penalty is ethical, but both sides have rarely brought up the issue of whether Nebraska’s implementation of the death penalty is constitutional. Earlier this year, in Hurst v. Florida, the U.S. Supreme Court held:

Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

Robert Dunham, executive director of the Death Penalty Information Center, doubts that Nebraska’s current death penalty statute could survive Hurst.

There’s a very significant prospect that Nebraska’s death penalty statute would be declared unconstitutional because the ultimate sentencing decision there, the weighing of aggravating and mitigating circumstances, is made by a three-judge panel [rather than a jury].

Furthermore, the state’s preferred method of execution, lethal injection, faces logistical hurdles. Because European manufacturers have refused to allow the export of drugs used in executions, states have looked to alternate, but legally dubious, sources. Last year, FedEx halted a shipment of sodium thiopental, a drug needed to sedate the inmate, that Nebraska had purchased from a supplier in India. The Food and Drug Administration had not given approval for sodium thiopental in executions, maintained that the shipment would have been illegal, and would seize any shipment of sodium thiopental upon entry into the United States.

In 2008, the Nebraska Supreme Court ruled that it was cruel and unusual punishment to use the electric chair in state executions.



Published November 6, 2016

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