The Death Penalty: Retain Or Repeal?
October 26, 2016 (Fault Lines) — The title to this post is taken from the above-the-fold main story in Sunday’s Lincoln Journal Star (October 23, 2016). For most, you know nothing, and don’t care to know anything, about Nebraska. I get it, but come Tuesday, November 8, 2016, the day of the elections, Nebraskans will make one of the most consequential decisions in this nation and that decision may have a significant impact on a certain segment of prosecutors and CDLs throughout the country.
In 2015, the Nebraska Legislature voted to eliminate the death penalty by passing Legislative Bill 268 (LB 268). The Governor, Pete Ricketts,* vetoed the bill but Nebraska’s one-house legislature overrode the veto. Surprisingly, one of the reddest of the red states had decided that killing people because they committed unspeakable murders would no longer take place.
The world seemed to wobble on its axis. If Nebraska slayed the death penalty, it could signal to other red states that the death penalty ought to be abolished in their states too.
From The New York Times:
LINCOLN, Neb. — Nebraska on Wednesday became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it.
After more than two hours of emotional speeches at the Capitol here, the Legislature, by a 30-to-19 vote that cut across party lines, overrode the governor’s veto of a bill repealing the state’s death penalty law. After the repeal measure passed, by just enough votes to overcome the veto, dozens of spectators in the balcony burst into celebration.
The vote capped a monthslong battle that pitted most lawmakers in the unicameral Legislature against the governor, many law enforcement officials and some family members of murder victims whose killers are on death row. The Legislature approved the repeal bill three times this year, each time by a veto-proof majority, before sending it to Mr. Ricketts’s desk. Adding to the drama, two senators who had previously voted for repeal switched to support the governor at the last minute.
Opponents of the death penalty here were able to build a coalition that spanned the ideological spectrum by winning the support of Republican legislators who said they believed capital punishment was inefficient, expensive and out of place with their party’s values, as well as that of lawmakers who cited religious or moral reasons for supporting the repeal. Nebraska joins 18 other states and Washington, D.C., in banning the death penalty.
Though it is not clear that other Republican-dominated states will follow Nebraska’s example, Wednesday’s vote came at a time when liberals and conservatives have been finding common ground on a range of criminal justice issues in Washington and around the country.
The lede to Matt Stroud’s article in Bloomberg News read this way, Which State Will Be Next to Drop the Death Penalty? With Nebraska’s ban this week, a pattern emerges.
Internationally, the Economist took notice, writing that:
the Midwestern state’s unicameral parliament overrode the veto of Pete Ricketts, the new Republican governor of Nebraska, of a bill to ban the death penalty. Governor Ricketts is a vocal opponent of the abolition of capital punishment, but he was obliged to sign the bill into law. Nebraska thus became the 19th state, and the first conservative state in more than four decades, to ban the death penalty.
But like so many western states, Nebraska allows the citizenry to override a decision of the legislature through the petition process. A petition was circulated and as the New York Times wrote:
The petition drive, which collected more than 143,000 verified signatures from across the state, will force a statewide referendum in November 2016, when Nebraska voters will decide whether the state should have a death penalty.
The announcement was a clear victory for Gov. Pete Ricketts, a vigorous supporter of capital punishment and a major financial contributor to the petition effort. It was a blow to the coalition of legislators who argued in emotional hearings at the state Capitol in May that the death penalty system in Nebraska was inefficient, expensive and immoral.
What do I think? I am not going to say.
First, since I became a judge in 1987, I have purposely refused to register to vote. So, I won’t be voting on the death penalty or any other matter including the national nightmare known as the Presidential election. Second, as a judge who handles death penalty habeas corpus cases (currently, one from Nebraska** and one in Arkansas), it would be wrong on a number of levels for me to express an opinion, so I won’t.
But, I will say this:
It is not excessive to suggest that when Nebraskans vote on the death penalty the nation will be watching and awaiting the outcome.*** In particular, the voters in a state with less than two million people are likely to have a significant impact on prosecutors and CDLs who currently deal with this life and death question in Nebraska and throughout the nation. The stakes are very high.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*Ricketts also sits on the Board of the Chicago Cubs baseball team that his family bought after selling Ameritrade. He is a very smart guy and an arch-conservative with a bachelor’s degree and MBA from the University of Chicago.
**I have the John Lotter case. You may know of Lotter as the anti-hero played by Peter Sarsgaard in the highly acclaimed 1999 movie Boys Don’t Cry.
***The language of the ballot is counterintuitive. If one votes to “retain” one votes against the death penalty because one is retaining the decision of the legislature. On the other hand, if one votes to “repeal” one is voting to do away with the law passed by the legislature and thus one is voting for the death penalty. See, for example, here.