Death Penalty in Nebraska


©2000 www.nebraskapen.org Last Updated: 04/07/00

"The question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in light of all information presently available."
Former Supreme Court Justice Thurgood Marshall (1972)

Nine men currently are facing the death penalty in Nebraska. As of June 6, 1998, there are about 150 inmates serving First Degree Life sentences in Nebraska, and about 65 more serving Second Degree Life sentences. The disparity in those numbers is one of the reasons that the Nebraska Unicameral has mandated a legislative study of the death penalty over the next two years. This study will attempt to determine the fairness of the use of the more severe and ultimate punishment available to the state.

What to look for?

If all the study looked at were the numbers related to race, religion, finances, and aggravating and mitigating circumstances of each capital case, it would likely come to the conclusion that the death penalty is far from fair and equal. What was it that the nine men currently under the sentence of death, and the three already executed, did that singled them out for execution, while more than 200 others were given a Life sentence? Those 200 plus were given some hope of freedom, no matter how slim that hope may appear. Many of the State Senators who voted in favor of this agree with the few boisterous vengeance seeking members of the public that more death sentences need to be handed out in order to make it fair.

Punish everybody?

This philosophy of punishing everyone for the acts of a few sounds good on the evening news, but in real life the practice only serves to make somewhat bitter people, convicted of a crime, into angry ones and angry ones into monsters. The tragic acts of the few which tear at the very fabric of our society enrage the people, with the help of the media, to the point that they want to exact the same amount of suffering upon the criminal as the victim suffered. The philosophy of deterrence, that an execution will make others stop and think before they would commit such a crime, is logical but faulty. No one stops to think of the consequences when rage and passion are in control of their emotions. At that time they cannot be swayed or stopped by logical philosophies.

Executing the innocent

In the United States a total of 82 death row inmates, among the 3,565 nationwide awaiting execution, have been set free after evidence of their innocence--and in some cases of corrupt conduct by the police investigators and prosecutors-showed them to be not guilty. But for these 82 men, justice only triumphed after they had spent many agonizing years behind bars. Some came within days of being executed.

The risk of executing the innocent, which is an unacceptable risk when life in prison is available as an alternative, is only one of the many forces behind a gathering movement to end the death penalty, or at least impose an execution moratorium until there is better citizen understanding that this very brutal an cruel form of retribution, if not mindless vengeance, is being fairly applied. It may be that it is impossible to ever fairly apply such a sentence which is sometimes more gruesomely imposed than people may realize.

Method of Execution

Nebraska is one of only three states which still uses the electric chair as its only means of execution. The U.S. Supreme Court has recently agreed to rule on an effort to end the repeated butchery of executions in Florida's antique electric chair. On January 6, 2000, Gov. Jeb Bush of Florida signed into law a bill enacted in an emergency session of the Florida legislature to allow Florida's condemned to choose lethal injection as a means of execution. The session was called in anticipation of the U.S. Supreme Court's expected ruling which would have banned the use of the electric chair, thus short circuiting several pending appeals by the 44 people currently under sentence of death in Florida. There is little difference between Florida's electric chair and the one that Nebraska has used three times in the past years. Nebraska's chair also requires repeated high voltage shocks to kill its victims. In Florida, sometimes the voltage has caused flames to go shooting from behind the mask of the victim, and covering the smoldering victims with their own hemorrhaged blood.

The continued use of the electric chair in Nebraska could be affected by this coming ruling. The inventor of this method of execution, founding electric magnate George Westinghouse, was not happy with his invention. After its first use in New York in 1890 he said, "They could have done it better with an axe."

Besides Nebraska, only Alabama and Georgia still use the electric chair as the only means of execution. In Nebraska a great deal of effort is going into the attempt to change this method of execution to lethal injection in case the U.S. Supreme Court strikes down this method of execution. If that would happen then Nebraska would be caught having no legal means of execution in state law. In Ohio, South Carolina, and Virginia, the electric chair is an option for the condemned, but nearly all opt to die by lethal injection instead.

The rush to kill

The U.S. Supreme Court has also said that it will soon consider the effect of a 1996 act of Congress that limits the power of Federal Courts to hear repeated appeals of state court orders rushing prisoners to execution. According to the December, 1999 issue of the Washington Spectator the so-called Anti-Terrorism and Effective Death Penalty Act of 1996 denies criminal defendants the right to file repeated writs of habeas corpus challenging their convictions or sentences. Part of the purpose for Congress passing this bill was to speed up the death penalty process.

In November, 1999 the U.S. Supreme Court declined to hear the claims of two long-term death row inmates who had claimed that their 20 years or more of pre-execution confinement was, in itself, a form of cruel and unwarranted punishment. In the same Washington Spectator article, Justice Stephen Breyer makes the point that he wanted to hear the two cases filed by prisoners in Florida and Nebraska.

Breyer said that both cases, one of which was filed by Carey Dean Moore of Nebraska, "involve astonishingly long delays flowing from significant constitutionally defective death penalty procedures. When a delay, measured in decades, reflects that state's own failure to comply with the Constitution's demands, the claim that time has rendered the execution inhumane is a particularly strong one."

Justice Breyer was alluding here to the constitutional tradition of Habeas Corpus, which is Latin for "you have the body." Its actual meaning today could be said to be that the judicial system gets the dead body of those it executes. That is not exactly the "great writ" of Habeas Corpus that was intended to protect a citizen from illegal imprisonment.

Justice Breyer noted that the highest courts in India and Zimbabwe have considered protracted delays in deciding whether executions can be carried out, and that courts in countries that share with the United States the English common law tradition--including India, Jamaica, and Zimbabwe-- have declared such delays "inhuman."

Racial bias

Prosecuting attorneys have virtually unlimited discretion in deciding whether to seek the death penalty rather than life in prison in the serious criminal cases they bring to trial. The presence of personal bias among the nearly 2000 prosecuting attorneys across the country has been a touchy subject for years, in part because only 1 percent of them are black.

The argument of racial bias in capital punishment cases is challenged by the view that blacks commit more crimes. But in the most definitive study of this conflict, the highly regarded non-partisan bookkeeping arm of the U.S. Congress, the General Accounting Office, in a review of historic data collected up to 1990 found that, "The race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty."

Incompetent lawyers

Most of the citizens of the state of Nebraska, and the country have luckily never had any experience with the criminal justice system. But over 10 million people are arrested each year in the U.S., and for defendants too poor to hire a lawyer the constitutional guarantee of a public defender is often a ticket to jail. According to the head of the Southern Center for Human Rights in Atlanta, Stephen Bright, "If you are the average poor person, you are going to be herded through the criminal justice system about like an animal is herded through the stockyards."

Other reasons

There are other, less esoteric reasons for ending the death penalty. As statistics show, capital punishment does nothing to reduce violent crime. It also costs more in money, as well as tarnishing the image of Nebraska and the United States, than lifetime prison sentences.

As researchers at the Death Penalty Information Center explain, the cost of criminal executions averages $2.1 million each because the executions are delayed by years of post-sentencing appeals. The cost of a lifetime in prison is about $20,000 a year, meaning that a prison term of 100 years, an obviously unlikely span of survival, would cost $100,000 less than execution.

Pattern of bias

In a 1990 report, Death Penalty Sentencing: Research Indicates a Pattern of Racial Disparities, the General Accounting Office concluded that, "those who murder whites were found more likely to be sentenced to death than those murdering blacks."

A more recent study, one for the American Bar Association in 1998, found that in 26 states out of the 38 that still have the death penalty, defendants were more likely to be sentenced to death if the victims were white than if they were black.

Racial justice

The House of Representatives has twice passed a so-called Racial Justice Act which would allow defendants facing execution to challenge their sentence on the grounds of racial discrimination. But in 1990 and again in 1994, the U.S. Senate rejected it. This information is available on the House of Representative's website on the Internet. Kentucky has passed a similar bill in 1999, making it the first state in the Union to have such a law.

How do Nebraskans feel?

Lincoln High School student Maggie Gossard, in a December 12, 1999, Lincoln Journal article says that, "Capital punishment is about as reasonable as one child hitting another child, and then the father steps in, strikes the child on the backside and says, 'Hey! We don't hit other people!'"

She also points out that race has become the foremost factor on who is sentenced to death. In Illinois, she points out, the death row population is 67% African American. The nationwide death row population includes a makeup of 42% blacks and 57% whites, while blacks only make up 12% of the nation's population.

Does the Death Penalty deter future murders?

The best way to learn if the threat of execution really works to deter others from committing murder is to listen to the words of those who have actually been on death row, facing the loss of their own life. Robert Hunt spent many anguishing months on Nebraska's Death Row. Listen to his own words and then see if the threat of death really works as its proponents would have everyone believe.

"...Ephesians 4:32 says, 'we all are to be kind and compassionate to one another, forgiving each other just as Christ has forgiven you.' This does not mean that people shouldn't be held responsible for their actions, they certainly should. We can, however, be forgiven and changed if we acknowledge our sins/wrongs before God and the people we have wronged. Some of us in prison have tried to do just that, learn from our mistakes and go forward trying to help others not make the same mistakes we have. We have been able to do this through, first, the love and forgiveness of Christ and then through the love and support from various people. And that is the only way that we are going to be able to stop the madness that is now going on in society. People are not going to change because of the laws getting tougher, or sentences getting longer. They are going to change because of the caring examples that they see. Because then they can admit their wrongs to the people that have been wronged and a healing can take place and through this, positive growth can happen for society. Nothing can ever change for the better when society uses one act of violence to make amends for another act of violence. It only makes matters worse. If acts of violence to stop other acts of violence were working, then Texas would be the safest place in the country. It is not. Plain and simply, violence, no matter who does it, only leads to more somewhere down the road. Only when our society follows Christ's example of justice blended with mercy and forgiveness will people's negative thoughts and actions be changed. But also, society must not forget that people can change. Some of the most famous Bible characters had criminal records, yet were used by God."

What will the Death Penalty Study say?

The current study on the death penalty can easily be designed and twisted to say anything that lawmakers and others want it to say. Figures don't lie, but unfortunately liars can figure. The law is unforgiving, but should the people of Nebraska be just as unforgiving as the electricity which takes a man's life? If the public's greatest desire is to exact punishment upon a person who has committed a crime, then the harshest punishment they could ever issue would be a life sentence without any parole or commutation. Lawmakers often say that a life sentence doesn't necessarily mean that a person will spend the rest of their life in prison because Nebraska has a Pardons Board which could commute a life sentence to a sentence of any number of years which would enable a person to be considered for parole. What they do not tell you is that the legislature could enact, along with the repeal of the Death Penalty, any law that would take away this power of the Pardons Board, or make it an option open to the sentencing judge. Again that would be an even harsher and more cruel sentence than being executed because you take away all of a person's hope. You cause the convicted person to face each morning knowing it will be just another day of mental torture and lonely anguish away from the people that he or she cares the most about.

The Governor has made it clear that he wants to change the method of execution from the electric chair to lethal injection during this legislative session. Is his motivation that he feels this is very cruel and harsh to torture a person like this in order to kill them? Or is it because he fears that the US Supreme Court will strike down the electric chair as cruel and unusual punishment, and therefore unconstitutional, leaving Nebraska unable to put anyone to death until new laws are passed to detail a new method of execution? Or is he afraid that the Court finding the electric chair unconstitutional would allow everyone now on death row to avoid execution by any means?

Before glossing over the taking of a life by making it more palatable with the use of a syringe instead of the electric chair, every lawmaker and citizen needs to consider the importance of life. Both the life of the victims of the convicted and the life that the state is about to take on behalf of all the good people of the state, one life is just as valuable as the other, and the taking of that life, as with any life, should never be easy or sterile.

Society's role

Today, morality seems to be determined by the media, by public opinion, by lawmakers, by everyone except the people who need to understand it best, the criminals, even though all the blame for the lack of morality in the world is placed on them alone. Gandhi said that people who commit crimes, "do not simply drop from the sky, nor do they spring from the earth like evil spirits. They are a product of social disorganization and society is therefore responsible for their existence. They should be looked upon as a symptom of the corruption of our body of politics. To remove the disease we must first uncover the underlying cause."

The current study of the death penalty and its fair imposition would not even be taking place if not for the support of several proponents of the death penalty in the Unicameral. Some of which are the very same senators who voted down a moratorium on executions in Nebraska for the two-year period of this study. These senators who favor capital punishment clearly have one goal in mind for this study. That goal is to make it clear to the good people of the state that more death sentences should be issued by the judges who serve the people. If the study reveals that far too often Nebraskans are given the death penalty not for committing the worst crimes, but for having the worst lawyers, will these same senators support new laws to make justice for all a reality in Nebraska? Or will they instead recommend new laws to broaden the use of the death penalty in Nebraska so that it becomes fairer by being more deadly?

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