Conservative Nebraska came close to repealing the death penalty as a majority – but not the super majority needed to end a filibuster - of the state Senate indicated support for repeal.
Stymied by a filibuster, a Nebraska state senator's latest push to abolish the death penalty died on the floor May 14, but not before a test vote revealed that - for the first time since 1979 - a majority of senators appeared to support the repeal.
"There's a realization that this isn't a Republican or Democratic issue, but rather this is a discussion about whether a public policy is actually serving Nebraskans," Stacy Anderson, executive director of Nebraskans Against the Death Penalty, said in an interview with Truthout. "You're starting to see the legislature really look at the issue and look at it more from a policy and less from an emotional standpoint."
Introduced by Omaha Sen. Ernie Chambers last January, LB 543 proposes to replace the state's death penalty with life without the possibility of parole. If passed, Nebraska would have become the 19th state to abandon the practice. Maryland, most recently, became the sixth state in as many years - and 18th overall - to repeal the death penalty. Other states to repeal the practice in recent years include: New York, New Jersey, New Mexico, Illinois and Connecticut.
In addition to Nebraska, 16 other states - most of them similarly conservative - have already or are currently considering repeal bills this year, according to the Death Penalty Information Center. On March 26, the Delaware Senate passed a repeal bill, 11-0, although the House Judiciary Committee later tabled it. In Colorado, a repeal bill was killed the same day. And on May 17, an Arkansas' repeal bill died in House Committee.
"People who from a distance say they love the death penalty don't know what a grotesque ceremony it is," Chambers said. "People don't cease to be human, and for those who call themselves religious, even Jesus on the cross took time to stop dying to talk to a fellow executee, if that's what you want to call it, to offer comfort."
Noting that county attorneys have "complete discretion" over seeking the punishment, Chambers said, "There is randomness, arbitrariness, and no standard for applying this penalty, which is to be state law. You have the same number of death laws as you have county attorneys . . . so even though there must be uniformity in tax laws, there need not be any uniformity - and there is not - in taking a life by the state."
Furthermore, Sen. Colby Coash argued that capitol punishment is a waste of taxpayer money.
"Have we saved any money by having this? Has it deterred crime? And most importantly, has it executed any amount of justice? We know the answer to these questions, and the answer is no," Coash said. "If the death penalty were any other government function that operated as inefficiently and as costly as this policy, we would have gotten rid of it a long time ago."
Citing a slew of grizzly murders, opponents of the bill said capital punishment is necessary as a deterrent and justifiable in exceptional cases, including the 11 men who currently sit on Nebraska's death row.
"I don't need a poll to guide my vote on this issue," said Sen. Beau McCoy, who led the filibuster. "Because there are communities that have experienced the most heinous crimes that you could possibly imagine. I believe it must be discussed to truly understand the magnitude - the evil involved - with these crimes."
Sen. Scott Lautenbaugh, who also opposed the bill, argued that society has more reason now than ever before to support capital punishment.
"The just cause for outrage of the death penalty has increased even as it has become more reliable," Lautenbaugh said. "It sounds unbelievable, but it's undoubtedly true. DNA evidence, video evidence, better presentation, more skeptical jurors and whatnot - we have less reason to doubt the fairness of the death penalty as it's being imposed today, and yet we now are trying to repeal it."
Through a series of floor amendments, divided amendments and bracket motions, McCoy and other opponents forced discussion of the bill past the session's eight-hour limit, preventing an up-or-down vote.
"Sen. McCoy and the rest of his click and clack ought to just stand up and say that they're against the bill being voted on because they believe there are enough votes to pass it," said Chambers, who has introduced the bill 37 times since his first election in 1973. His bill passed in 1979, only to be vetoed by the governor. "They are gutless. Stand up and show yourself."
Several hours into the debate, Sen. Brad Ashford introduced a bracket motion to gauge support for the bill. A vote against the bracket, Ashford said, signaled a vote for the repeal, and vice versa. The bracket motion failed, 18 to 26. A simple majority in the Nebraska legislature is 25.
Attempting to crack the filibuster, Chambers later motioned to invoke cloture, which would have forced a vote on the bill. The motion garnered 28 votes, again a majority, but failed to receive the 33 votes necessary to end a filibuster.
"The purpose of our legislature, the way it is designed, the way it was set up, the way it must work, is to have the ability to make decisions on tough issues, whether its Medicaid or the death penalty, or whatever," Ashford said. "This strategy of stopping votes is ludicrous, and it is contra to our tradition since 1937 [first single-legislative session], and it's contra to the way we are."
In a personal email, Lautenbaugh said, in response, that the filibuster was purely a means to an end.
"I opposed the bill, and I knew I had the votes to sustain my filibuster, so I killed the bill in that way. My goal was to kill the bill - nothing more. Not to make a record, not to have a vote, not to provide an opportunity to take a public position, not to uphold a heretofore unknown tradition of every bill getting a vote, etc."
The debate, which lasted two days, meandered through a slew of different topics, from Nebraska's inability to find usable execution drugs, to the death penalty's cogency as a deterrent, to the Bible's approval (or not) of capital punishment. One senator introduced an amendment to the bill that would have added a clause about the value of human life, sparking an hour-long discussion of abortion. That amendment was later pulled.
Nebraska has come under fire in recent years for twice purchasing sodium thiopental, its lethal injection drug, from overseas distributors without proper licensing. Noting the increasing difficulty of obtaining the drug and the looming expiration dates of the state's only remaining supply, several senators deemed Nebraska's death penalty impotent already.
"Look at things for what they really are. We know that we're not going to execute another person in this state ever again, it's just not going to happen," Coash said. "We're not going to have the drugs to be able to do it. No one is going to sell the drugs to this state. So be thoughtful about this. You can leave your hearts out of it, use your brains."
Nationally, life without parole has its own critics. According to Ashley Nellis, a senior research analyst at The Sentencing Project in Washington, D.C., life without parole is prone to the same pitfalls as the death penalty and is therefore inappropriate as an alternative sentence. Life without parole, she wrote in the University of Miami Law Review, avoids the same heightened judicial review afforded the death penalty, increasing the likelihood of false imprisonment. Furthermore, life without parole is applied mandatorily in many cases, negating reasoned deliberation. And like the death penalty, racial disparity influences the sentencing process.
"Life without parole is effectively a death sentence; to consider it as anything less severe is a mistake," Nellis wrote. "Even though one's death may not occur for a few decades or more does not mean that the government has not decided how and where the individual will die."
And according to David R. Dow, a death penalty lawyer and Houston University professor, "Life without parole saves lives, but that's about it.
"In every other way it's a nightmare," he wrote in a column for The Daily Beast. "It gives up on everyone, regardless of whether they exhibit any capacity for growth and change; it robs people of hope; it exaggerates the risk to society of releasing convicted murderers, and it turns prisons into geriatric wards, with inmates rolling around in taxpayer-funded wheelchairs carrying oxygen canisters in their laps."
But according to Anderson, "when we're talking about really violent murderers, we need to be able to ensure the public that they will be safe and that these people are removed from society and unable to harm anybody for life.
"Abolishing the death penalty is the first step. I think LWOP is still an alternative to the death penalty at this point. As long as people are alive, we have the option and the opportunity to change a policy that will affect their lives."