Mimesis Law
24 June 2019

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.

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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.

Decision day is almost here. The opposing sides have fought hard making strong arguments for their respective sides. See, for example, here and here.

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.

11 Comments on this post.

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  • Anon
    26 October 2016 at 1:56 pm - Reply

    I really struggle with this, and have taken different positions at different times of my life. As a young man, recently out of law school and the Navy, I was opposed to capital punishment. Discussed it with my father. He was in favor of it. I was surprised at his position, and how adamant he was about it. My Dad wasn’t particularly conservative, and was an observant Catholic. I teased him a bit on the contradiction between his religious convictions and the death penalty. I couldn’t see Christ throwing the switch, and I had my doubts that my father could vote on a jury to send someone to the death house. His answer to me was that he believed that human life had to have value, and that if someone with intent to murder, murdered, then the only possible way to validate the sanctity of life was to execute. I was kind of surprised at that, and not sure I agreed or followed the logic.

    A few years later, maybe two or three, we lost my father to a terrible illness. He had just turned sixty. Watching him suffer, and ultimately die an agonizing death, after having lived a wonderful, blameless life made me begin to reevaluate my position on capital punishment. I was pushed along to re-evaluate my position following the murder of Dr. Petit’s entire family by two purely evil creatures who showed absolutely no respect for human life, and absolutely zero mercy on their victims. Following their home invasion, they brutalized, and then burnt alive, a mother and her daughters. What other punishment under those circumstances makes any sense in any civilized society?

    As an older man I have come to the conclusion that my father was right. At least in the most egregious cases. Maybe it really is better to have a bicameral legislature after all. Gives an opportunity to have a second look at proposed legislative action before taking a precipitate step.

    • Richard G. Kopf
      26 October 2016 at 3:49 pm - Reply

      Anon.,

      You beautifully describe much of the to and fro that is constantly in my mind as I think about the death penalty. Thanks very much for taking the time to write.

      All the best.

      RGK

    • Jason K.
      26 October 2016 at 7:02 pm - Reply

      Would you still feel that way if you knew that that having executions in place means a certain percentage of those killed will be innocent? It isn’t cheaper. It isn’t a deterrent. It isn’t even really a punishment in the sense that it provides no corrective impact on those ‘punished’. All it accomplishes is impacting how other people feel. That is what it is really about. It is about the rest of society extracting vengeance and purging the unwanted/defective. It is embracing emotion over reason.

      Punishment isn’t justice. Vengeance isn’t justice. Sometimes (a lot of the time) there is no justice that we can get. That is what people tend to be scared to face. They want to believe that there is an easy solution to a complex ugly problem. Executions are a superficially satisfying solution, but its implementation is deeply toxic towards the pursuit of justice.

      If you just want to punish and/or purge people, that’s fine. Just recognize it for what it is and that you are neither seeking nor getting justice.

  • SPM
    26 October 2016 at 4:39 pm - Reply

    Ah, Ernie Chambers. I am surprised to see that he is still going strong. Having since lived across most of the country, I have discovered that he is a pretty rare individual. It is difficult to give non-Nebraskans an accurate description of his character. The closest I have come is that he is who Al Sharpton or Jesse Jackson like to dream that they are.

    I am opposed to capital punishment, although I reject most of the arguments that are commonly used in support of this position. I would suggest that it be replaced with “life on death row.” (No irony or humor intended.) I believe that most opponents ignore the fact that society must have some form of “supreme punishment.” While there are extreme variations in death row conditions across the country, they generally provide a very grim existence. (Even without the threat of death hanging over the heads of the inmates.) So perhaps natural life under such conditions can serve the “supreme punishment” role.

    • Richard G. Kopf
      26 October 2016 at 7:16 pm - Reply

      SPM,

      I had the great good fortune of working with Senator Chambers long ago when I tried the impeachment of Nebraska’s Attorney General. Senator Chambers is many things, and they are, mostly, good. While the Senator can be too flamboyant in my opinion, he is a fine person with a brilliant intellect and rhetorical skills to match.

      Thanks for writing. All the best.

      RGK

      PS. Interesting factoid: Senator Chambers is a barber with a law degree.

    • MOK
      27 October 2016 at 9:32 am - Reply

      Your comment about Ernie is one I had never thought of: “He is who Al Sharpton or Jesse Jackson like to dream they are.” Yes, I can agree with that. I first saw and heard Ernie in 1969 when I was a freshman at a small liberal arts college in south central Nebraska. As you surely know, this was a turbulent time in the country, cities burning, Vietnam war and 300 body bags coming home every week, colleges in anti-war turmoil, etc. Ernie was a handsome, young, angry black man in a white T-shirt with muscled arms who was invited to campus as part of a week of seminars discussing the state of the world and country. During one of his black power-type presentations to us naive students, one sweet young lady from a small town in Colorado said: “I understand what you are saying and even agree with much of it, but why do you have to throw bricks through windows?” Turning to the student, Ernie very patiently and gently replied, “Because, little lady, sometimes that is the only way I can get your attention.” I never forgot that moment. It explained so much in a few words. I later saw Ernie in action many times on the floor of the Nebraska Unicameral when I was a law student and I’ve followed his many antics over the years. He is too often over the top and outrageous in his comments and claims – he certainly gets attention, mostly negative. Then I think about his comment to the “little lady” way back in 1969 and I better understand what he is doing. I can disagree with him and his tactics, but I understand. With understanding comes a degree of respect. Deep down I believe Ernie is a good person who is sadly trapped in a shell of continued anger. He is one of Nebraska’s most interesting and complex figures, perhaps a “gadfly” who has done much to take Nebraskans where they might not otherwise have gone.

      • Richard Kopf
        27 October 2016 at 10:02 am - Reply

        MOK,

        I second the motion.

        All the best.

        RGK

  • David Meyer Lindenberg
    27 October 2016 at 6:42 pm - Reply

    Your Honor,

    I’m privileged to have read this. Thank you.

    • Richard G. Kopf
      27 October 2016 at 8:02 pm - Reply

      David,

      Thank you. Coming from that is high praise indeed.

      All the best.

      RGK

  • Dave
    3 November 2016 at 5:58 pm - Reply

    As a Nebraska voter, and one who has just voted (thanks to the Lancaster County Election Board), I appreciate your concern for the ballot measure’s counterintuitive language. I read the paragraph twice to understand where my vote should go. I can’t imagine someone with less than an eighth-grade reading comprehension facing this accurately.

    I have been on a journey with this topic for a long time. Growing up fundamental Baptist, it was always accepted (eye for an eye, natch). Later liberalization led me into more life-affirming ways, both regarding abortion and the death penalty – congruity between both doesn’t leave an out. Continued revelations regarding DNA exonerations and other prosecutorial issues confirm this further.

    Most off, thanks for contextualizing the nature of this vote; I wasn’t aware of this being a worldwide phenomenon. And, the beer is on me if you want to spill your thoughts further in a less-formal context 🙂

    P.S. “national nightmare” is a very evocative and succinct turn of phrase, of which I will use forthwith.