Nebraska’s death penalty: repealed or not?


September 3rd, 2015

A prisoner would be strapped to this table for execution if Nebraska carried out the death penalty (Photo by Bill Kelly, NET News)

A prisoner would be strapped to this table for execution if Nebraska carried out the death penalty (Photo by Bill Kelly, NET News)

Is Nebraska’s death penalty repealed, or not? Events of the past week raise fundamental questions about the state’s ultimate punishment.

You can go online and look up the law that sets the penalty for first-degree murder in the state: it’s Nebraska Revised Statute 28-105. You’ll see the maximum penalty for a class 1A felonies – the most serious crimes, including first-degree murder — is life imprisonment. And you’ll see this law took effect August 30, 2015.

That’s three months after the Legislature adjourned, after voting to repeal the state’s death penalty. That’s when the Nebraska Constitution says bills become law.

But Nebraska Attorney General Doug Peterson says the repeal bill is not the law. “Repeal of the death penalty – efforts to do that through the statutory process – have been halted,” Peterson said.

Last Wednesday – four days before repeal was to take effect, death penalty supporters turned in nearly 167,000 petition signatures to repeal the repeal.

That’s more than 10 percent of the state‘s registered voters. The Nebraska Constitution says that’s enough to suspend the repeal law. The attorney general says those signatures are presumed valid, meaning the repeal never took effect.

Not so, says defense attorney Jerry Soucie, who’s defended death row inmates. “The reality is, is that the repeal goes into effect, and then you have a situation where there may or may not be actions on the part of the secretary of state to retroactively suspend the repeal,” Soucie said.

It will be a month or so before county officials finish checking whether the signatures match voter registration information. After that, Secretary of State John Gale will announce whether death penalty supporters got enough signatures to suspend the repeal, and put the issue before Nebraska voters next November.

Click above to see more. Source: Nebraska Dept. of Correctional Svcs.

Click above to see more. Source: Nebraska Dept. of Correctional Svcs.

What difference does this make? Former Attorney General, now State Treasurer Don Stenberg alluded to one reason it could be important when and if the repeal of the death penalty is suspended. “It removes a possible argument that repeal of the death penalty by the Legislature, had it gone into effect, would affect those cases currently on death row.

Ten men are currently on death row in Nebraska. Defense attorney Soucie says even if the repeal is suspended, none of them will be executed if Nebraskans are going to vote on the death penalty. “As a practical matter, I think it is rather a fanciful conjecture that the Nebraska Supreme Court would be willing to order the execution of someone, even if they do have the lethal drugs, if there is pending a vote of the people regarding whether to let the repeal effort stand,” he said. “Nothing’s going to happen for the next year and a half.”

Attorney General Doug Peterson isn’t so sure. “I don’t think we can speculate. I’m sure that those who are in favor of repealing the death penalty believe that position. I’m not going to step into that process and tell you what I think the Supreme Court would do in that regard.”

The state does not have any current requests into the Nebraska Supreme Court to set execution dates for inmates on death row. Officials have so far been unable to legally import the drugs needed to carry out lethal injections. Sen. Ernie Chambers, who sponsored the death penalty repeal bill, says that effectively pushes any potential execution back even more. “If any drugs are imported, then the whole panoply of appeals – remedies available to anybody under the sentence of death – will occur,” Chambers said. “So for a minimum period, I would say, of a decade, there could not be an execution even if a death warrant somehow were procured.”

Peterson doesn’t concede that point, either. “I wouldn’t speculate like that with respect to what the future holds. I do think there are processes that can be put in place. But I’m not going to speculate on how quickly that would work at this point in time,” he said.

With about a month to go before signatures are verified; with possible legal challenges to the petition drive; and with almost a year and a half before it could go before voters, the death penalty in Nebraska still faces an uncertain future.

Watch a history of Nebraska’s death penalty:

Watch a discussion of the future of Nebraska’s death penalty:


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