EDITORIALS: Lincoln Journal Star Urges Nebraska Voters to End State's Death Penalty

Saying the death penalty is "too fallible to endure," the Lincoln Journal Star has called on Nebraska voters to end capital punishment in the state. In two editorials published in connection with the upcoming statewide death penalty ballot referendum on November 8, the paper urged Nebraskans to retain the legislature's death penalty repeal bill. The predominantly Republican legislature voted to repeal the state's death penalty in May 2015 and then, a few days later, overrode a veto by Governor Pete Ricketts. The Governor, in turn, launched a successful petition drive to place the repeal issue on the ballot. The Journal Star's first editorial focused on the "bottom line" question that, "[t]o support the death penalty, you must be willing to take the chance that the state will execute an innocent person." In addressing that question, the paper highlighted notable exonerations from Beatrice, Nebraska and elsewhere. The editorial explained that, in the largest false confession case in American history, "[t]he 'Beatrice 6' were railroaded into prison for a murder they did not commit. Finally DNA showed someone else committed the crime. Now Gage County is on the hook for $28.1 million in damages." The paper also discussed the exoneration of former Air Force sergeant Ray Krone, who—with no criminal record—was wrongfully convicted and sentenced to death in Arizona. "If it happened to Krone," the paper said, “it can happen to anybody.” In a second editorial, the Journal Star presented what it called the "powerful" conservative argument against capital punishment. The death penalty, conservatives say, "is an extraordinary example of government overreach that costs inordinate amounts of money," violates "the sanctity of life," "[s]ometimes ... delivers erroneous results, and for years on end it delivers no results at all." A recent study found that the death penalty costs Nebraska taxpayers $14.6 million per year, even though the state has not had an execution in nearly 20 years. The paper said: "All this spending siphons away money that could and should be put to use more effectively in protecting public safety. Five hundred police chiefs were asked in 1995 and 2008 to rank the tools they found most effective in fighting violent crime, [former Lincoln Police Chief Allen] Curtis wrote. 'The death penalty came in absolutely last.'" The editorial concluded, "[t]houghtful conservatives who take the time to research the issue will vote on Nov. 8 to retain the law that eliminates the death penalty and replaces it with life in prison."

STUDIES: Nebraska's Death Penalty Costs $14.6 Million Per Year

A new study of Nebraska's death penalty found that the state spends $14.6 million per year to maintain its capital punishment system. The study, The Economic Impact of the Death Penalty on the State of Nebraska: A Taxpayer Burden?, also estimates that each death penalty prosecution cost Nebraska's taxpayers about $1.5 million more than a life without parole prosecution. At a press conference announcing the study, principal investigator Dr. Ernest Goss—an economics professor at Creighton University and founder of the conservative think tank, Goss & Associates—presented the findings as a strong economic argument in favor of retaining Nebraska's recent repeal of the death penalty. Nebraska voters will decide in November whether to keep the repeal bill, which was passed by the legislature in May 2015 over the veto of Governor Pete Ricketts, or overturn the legislature's decision and reinstate the death penalty. "If economics is your major factor, you should vote to retain," Dr. Goss said. He explained that conducting the study had altered his own views on capital punishment, which he supported before he learned about the economic costs. 1,842 homicides were committed in Nebraska between 1973 and 2014, with prosecutors seeking death 119 times and obtaining 33 death sentences. Of those sentenced to death, the study found that 13 had their sentences reduced, six died in prison, three were executed, one sentence was vacated, and ten are still appealing their sentences. Examining costs on a national level, the study said that death penalty states spend about 3.54% of overall state budgets on criminal justice, while states without the death penalty spend about 2.93%. On average, the death penalty costs a state $23.2 million more per year than alternative sentences. The study was commissioned by the organization Retain a Just Nebraska, which supports retaining the Nebraska legislature's repeal of the state's death penalty. (Click image to enlarge.)

Nebraska Exonerees Awarded $28 Million, Prosecutor Says Case Made Him Oppose Death Penalty

A federal court jury has awarded six Nebraska exonerees (pictured, at their exoneration) $28 million in damages for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The "Beatrice Six," as the group came to be known, were falsely accused of the killing and threatened with the death penalty. Five of the defendants—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest to avoid possible death sentences. The sixth—Joseph E. White—demanded a jury trial, and was convicted. All six were exonerated by DNA evidence tested in 2008. On July 6, the jury found that the Gage County, Nebraska Sheriff's Office had been reckless in its investigation and had fabricated evidence. The $28 million damages award exceeds the entire annual budget of Gage County by $1 million, and the county does not have an insurance policy to cover court judgments resulting from law enforcement misconduct. At a press conference on July 8, Randall Rintour, the Gage County prosecutor who reopened the Beatrice Six case in 2008, said the case had changed his views on the death penalty. “It happened right here in our backyard. We can’t say it’s not possible to make a mistake because we did, we made a huge one," he said. "Our ability to execute all the ... murderers we can is not worth the death of one innocent individual at the hands of the state." State Sen. Burke Harr, a former Douglas County deputy prosecutor, joined Rintour in urging Nebraskans to retain the state's repeal of the death penalty, which is the subject of a November referendum. Sen. Harr, one of 30 legislators who voted in favor of repeal, said, "The death penalty is just that, it’s forever. There’s no coming back."

Nebraska Supreme Court Hears Challenge to Death Penalty Referendum

The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal. [UPDATE: On July 8, 2016, the Nebraska Supreme Court that Governor Ricketts’ financial and other support for the petition drive did not make him a “sponsor” of the referendum, and therefore proponents' of the referendum did not have to disclose his involvement in the petition drive. The court rejected the Hargesheimers' efforts to remove the referendum from the ballot.] 

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

Victim's Cousin in Oklahoma Death Penalty Case Speaks of "Awful" Guilt Upon Learning Defendants Were Actually Innocent

After Debbie Carter was raped and murdered in Ada, Oklahoma in 1982, police and prosecutors told her cousin, Christy Sheppard (pictured) that Ron Williamson and Dennis Fritz were guilty of the crime. In 1988, Williamson was convicted and sentenced to death; Fritz received a life sentence. Eleven years later, the pair were exonerated when DNA testing excluded them as perpetrators and pointed to another man who had once been a suspect. Sheppard, now a criminal justice counselor and victim advocate in Ada, recently shared the story of her experience learning that Williamson and Fritz were actually innocent. “The guilt has been awful,” she said. “It is horrible to think that you prayed, wished, helped and condoned to bring harm to someone else and then to find out that it wasn’t deserved and later learn what they went through.” Sheppard said her family was shocked, "It was like being in a Twilight Zone. It fit nothing we knew to be true." The experience changed her views on the death penalty, which she had previously supported. "In theory, it seems like that’s the way it ought to be: The punishment fits the crime. But when you pick it apart, it’s just a mess," she said. Sheppard is serving on the recently-announced Oklahoma Death Penalty Review Commission, and is also campaigning on behalf of Retain a Just Nebraska, a group working to defeat a ballot initiative that would reverse that state's legislative repeal of the death penalty.

Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.