How Nebraska killed the death penalty

Nebraska repeals the death penalty in a landmark override vote by the state legislature.

Photo by James Dean (Flickr)

The state of Nebraska made history last month with a vote to repeal the use of the death penalty.  Just a week before, Governor Pete Ricketts vetoed the legislation that would act to end capital punishment in the state.  The historic vote was 30-19 in favor of an override of the Governor’s veto.  The repeal is especially noteworthy because Nebraska is a historically conservative state.  Nebraska has now become the first Republican-controlled state in the U.S. to repeal the death penalty since North Dakota in 1973.

Nebraska first instituted capital punishment on a state-wide level in 1903

Although the death penalty has existed for thousands of years, it was first utilized in the United States during the 1600’s.  More specifically, the use of the death penalty in Nebraska has a long and interesting history.  Nebraska first instituted capital punishment on a state-wide level in 1903.  Before this point in time, the county where the crime occurred had control over the punishment.

Hanging was the primary method of execution for much of the state’s early history. However, there was a push in 1913 for the state to adopt a “modern” method of execution because executions were becoming public spectacles, and causing mass chaos in the local counties.  The state subsequently utilized the electric chair for executions, beginning in 1920.  Nebraska became the last state in the U.S. to rely solely on the electric chair for executions.

On February 8, 2008, however, the Nebraska Supreme Court decided to hear a case on the constitutionality of using the electric chair to execute those on death row.  The Court struggled with the issue stating, “we recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer.  But it is the hallmark of a civilized society that we punish cruelty without practicing it.  Condemned prisoners must not be tortured to death, regardless of their crimes.”  The Court ultimately declared in State v. Mata that electrocution constituted “cruel and unusual punishment” under the state constitution.  The 2010 decision effectively stayed all death sentences in Nebraska.  The state legislature subsequently approved a bill to change its method of execution to lethal injection.  Despite capital punishment existing until last month’s veto override, the last time Nebraska executed someone was in 1997.

Ultimately, the substantial difficulty in obtaining the necessary drugs combined with incidents around the country of the drugs interacting badly or ineffectively, has created doubt…

Michigan was the first state to repeal the death penalty in 1846.  Nebraska now joins eighteen other states that have repealed the death penalty in recent years; with the last seven (including Nebraska) being after 2007.  This compels the question—why are states deciding to abolish the death penalty?

The first reason is most likely due to a lack of availability of certain drugs.  Just like several other states, Nebraska recently has had substantial difficulty in procuring the drugs necessary to carry out executions by lethal injection.  The state has had problems obtaining the anesthetic, sodium thiopental, used to induce a coma, because pharmaceutical companies do not want their products associated with capital punishment.  Magnifying the issue, the European Union (EU) in 2005 restricted exports of goods “for the purpose of capital punishment or for the purpose of torture.”  The EU has been very strong in its stance against capital punishment which has seriously affected the United States in recent years.  The shortage of sodium thiopental is also significant because without the inmate being in an unconscious condition, the interaction of the toxic drugs is incredibly painful.  This would likely be viewed by courts as cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.

The shortage of sodium thiopental has not only been affecting states, it has affected many death row inmates in recent years.  In July of 2014, witnesses said that it took Arizona death row inmate, Joseph Wood more than two hours to die from lethal injection.  Witnesses stated that Wood was gasping and snorting for over ninety minutes while the drugs were taking effect.  He had been given fifteen doses of the drug cocktail.  This was just one example of a prolonged execution, resulting from using untested drugs.  Because sodium thiopental was not available, Arizona turned to midazolam combined with hydromorphone to carry out the lethal injection.  The procedure clearly did not work as expected.  This incident and others around the country have propelled the movement to end capital punishment.  Ultimately, the substantial difficulty in obtaining the necessary drugs combined with incidents around the country of the drugs interacting badly or ineffectively, has created doubt over whether the death penalty is worth the substantial costs.

Lawmakers cited government waste, religious reasons, or wrongful convictions for why they supported the repeal

The override vote took place on May 27, 2015, in the state’s unicameral legislature chamber, just a few days after the Governor’s veto.  The debate was intense and emotional, and went on for more than two hours.  Two legislators switched their votes to side with the Governor, making it a very tight and suspenseful vote.  Eventually though, the supporters of the repeal obtained the votes needed.  The announcement was met with cheers from the gallery.

Lawmakers cited government waste, religious reasons, or wrongful convictions for why they supported the repeal.  “I’ve said frequently, if any other program was as inefficient and as costly as this has been, we would’ve gotten rid of it a long time ago,” said state Senator Colby Coash, a Republican who co-sponsored the repeal bill. In the end, the repeal movement obtained thirty votes in the legislature; the exact number needed to override the veto.  Yet, those in favor of capital punishment have not given up on reinstating it for the state.

Governor Ricketts has said that the repeal should not apply to the ten inmates currently on death row in the state

Notwithstanding the repeal of the death penalty in Nebraska, Governor Ricketts has said that the repeal should not apply to the ten inmates currently on death row in the state.  The Governor’s position is unique, as no state that has repealed the death penalty has ever subsequently executed an inmate.  He also expressed his frustration with the vote stating, “my words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families.”

Furthermore, two weeks ago Senator Beau McCoy of Omaha announced the formation of a new group, Nebraskans for Justice, which will strive towards a citizen-led ballot initiative to reinstate capital punishment for the State.  The state’s referendum process allows citizens to suspend a law if ten percent of registered voters’ signatures are collected.  If the group collects the required number of signatures, the issue will be voted on by state citizens in the November 2016 general election.  In response, the ACLU of Nebraska is urging state voters to not sign the referendum and has vowed to passionately fight the ballot initiative.

Despite this new ballot initiative being proposed by some state legislators, supporters of the movement are most content enjoying the legislative victory at this point in time. “We are a nation that is turning away from the death penalty.  This victory stands as a testament to what can happen in our sister states,” Danielle Conrad, the executive director of the Nebraska chapter of the American Civil Liberties Union, said in a released statement.  The ultimate question now is whether Nebraska will be a single example of abolishing the death penalty, or whether the state will lead the way for others contemplating the same.

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About Olivia Bouffard, Staff Writer (12 Articles)
Olivia Bouffard is a 2016 graduate and served as a Staff Writer for the Campbell Law Observer. She graduated from UNC-Wilmington with a Bachelor of Arts in Political Science in 2013. Following her first year of law school, Olivia participated in a study abroad program at Cambridge University. During the Fall 2014 semester she interned with Judge Stanford L. Steelman, Jr. at the North Carolina Court of Appeals. Olivia worked with the Department of Public Instruction as a legal intern with the State Board of Education during the summer before her third year.