When Nebraska voters go to the polls on Tuesday, they will decide whether they want the death penalty back, or to keep in place the repeal bill the legislature passed in May 2015. The legislature, which has a Republican majority, not only voted to repeal the death penalty, but overrode a veto of the bill by Republican Governor Pete Ricketts. Ricketts then launched, and helped to personally finance, a petition drive to put a repeal measure on the ballot.
One of the main reasons legislators voted for repeal last year was the cost of having a death penalty. A recent analysis by Creighton University economics professor Ernest Goss found that the state’s death penalty system cost an average $14.6 million a year.
On Tuesday, two conservative state senators said that with the state facing a nearly one billion dollar shortfall, that money could be better spent on reducing property taxes or improving law enforcement.
And seven retired Nebraska judges, including a former state supreme court judge, have publicly endorsed retaining the repeal, saying the system is fallible, and, “It is simply too much to expect perfection in any human institution — which is what the death penalty demands, since it is impossible to bring back the wrongfully executed.”
Nebraska has 10 men on death row. Their status did not change with the repeal vote, pending the outcome of this month’s election. Nebraska’s last execution was in 1997.
In Oklahoma, it’s a whole different situation. Instead of deciding whether to retain or reinstate the death penalty, voters will decide whether they want the death penalty to be the law in perpetuity. In what might have been a reaction to a poll last year, which revealed that 52 percent of respondents said they would support abolition if the alternative is life without parole, death penalty proponents succeeded in getting an initiative on the ballot that would enshrine capital punishment in the state constitution, declaring that it does not violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”
The Marshall Project reports that one of the initiative’s sponsors said he was worried that, like Nebraska, the Oklahoma legislature could vote to repeal the death penalty, or that the state supreme court could rule that the state’s new secrecy law protecting the identity of the companies providing execution drugs was invalid.
These fears are not unfounded. Oklahoma has been at the center of controversy over its use of the death penalty in the past few years. In 2014, condemned inmate Clayton Lockett took 43 minutes to die in a botched execution that the prison warden said in court filings was “a bloody mess.”
Then, in January 2015, Charles Warner was executed with the wrong drug — potassium acetate instead of potassium chloride — which was not part of the state’s lethal injection protocol. And, eight months later, just hours before Richard Glossip (whose conviction has caused international controversy) was scheduled to be executed, the governor called it off when it was discovered the state still didn’t have the required potassium chloride, and was about to use the wrong drug again. The botched execution of Warner, and the almost-botched execution of Glossip resulted in a multi-county grand jury investigation. As the Intercept has reported, the 106-page report was “a scathing indictment of Oklahoma authorities. . . . that details a stunning pattern of incompetence and disregard for protocol at every state of the execution process. . . . and reveals that officials lied to the public about key aspects of what happened.”
So death penalty supporters have good reason to worry that the legislature could vote to repeal the death penalty or that the state supreme court could get involved in the legality of its lethal injection drug protocol. What remains to be seen is whether voters share their fervor for a death penalty scheme no matter how flawed or unjust, and agree it should be enshrined in the state constitution.
