"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, October 17, 2016

Nebraska: Death penalty too fallible to endure

The bottom line on the death penalty deserves to be at the top of any discussion of the death penalty, so here it is:

To support the death penalty, you must be willing to take the chance that the state will execute an innocent person.

The development of DNA technology proved how often the criminal justice system can go awry. Scores of death row inmates have been released after they were cleared by DNA evidence.

1 of them was Ray Krone, who spent 10 years in prison, including 3 years on death row for a murder he did not commit. At least 1 of the votes in the Legislature to repeal the death penalty came after the senator talked with Krone.

If it happened to Krone, a former Air Force sergeant with no criminal record, "It can happen to anybody," Krone says.

Could you sit across a desk from Krone and tell him you don't care if the occasional innocent person is executed?

Nebraskans know how fallible the criminal system can be. The "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. It has been described as the largest false confession case in American history.

Jerry Givens executed 62 people in Virgina. He was within days of executing No. 63, but before he pulled the switch on the electric chair one more time, the inmate won a reprieve. Ultimately the inmate was exonerated and given a full pardon on the basis of DNA evidence.

Now Givens opposes the death penalty. "If I execute an innocent person, I'm no better than the people on death row," he said.

Most of the errors in the criminal justice system are made by well-meaning people who simply make mistakes.

There's another way that the justice system can miscarry. Sometimes people act with actual malice. They try to take the law into their own hands. The former head of the Crime Investigation Unit in Omaha was sentenced to prison for planting evidence that led to the wrongful arrest of 2 men for the murder of Wayne and Sharmon Stock, found shot to death in their farm house near Murdock in 2006. 2 other people were convicted for the crime.

Experts have been working for hundreds of years to rid death penalty system of the possibility of error. All they have done is add seemingly endless routes of appeal that make the death penalty horrendously expensive.

A better option than risking the possibility of executing an innocent person is replacing the death penalty with life in prison. That's why we urge Nebraskans to retain the repeal voted into law by 32 state senators.

This is the 1st of 2 editorials on Referendum No. 426 on the Nov. 8 ballot. Tomorrow's editorial lays out the conservative argument for replacing the death penalty with life in prison.

Source: Editorial Board, Lincoln Journal Star, October 16, 2016

Death penalty in Nebraska: Periodic rise and fall of opposition

Gathering signatures against the Nebraska death penalty repeal
Gathering signatures against the Nebraska death penalty repeal
Voters will consider a historic ballot measure next month to restore Nebraska's death penalty after the Legislature repealed it in 2015. The World-Herald is exploring several aspects of capital punishment, which will be on the Nov. 8 ballot. Today: the evolution of the death penalty.

Iowa eliminated its death penalty during the last wave of opposition to capital punishment across the United States.

It was 1965. Democrats had gained control of the State Legislature. Gov. Harold Hughes, a fervent death penalty opponent, had handily won re-election.

A majority of Iowans had come around to his view, with polls that year showing 57 % favored repeal.

Soon after convening for the year, lawmakers of both parties voted for the repeal, and Hughes quickly signed it into law.

A half century later, Iowa remains without a death penalty, and despite occasional debates, lawmakers say it's generally considered a settled issue.

"Iowans have grown up without the death penalty," said State Sen. Rob Hogg, D-Cedar Rapids. "We know that it's not needed."

Now, Nebraskans are deciding whether to revive their state's death penalty as a new wave of opposition to capital punishment builds across the nation.

The vote will join other milestones in the history of the death penalty in the United States.

It's a history older than the country itself and one marked by the periodic rise and fall of opposition. It's also a history in which the overarching trend has been away from state-sponsored execution.

Currently the number of states without a death penalty stands at an all-time high, the number of executions is approaching a 25-year low, and polls are finding support for the ultimate punishment slipping for both pragmatic and moral reasons.

The death penalty is not dead, however. It remains the law in the majority of states, the latest poll shows more support than opposition, and religious institutions remain divided over its morality.

Opponents cite the actions of a conservative Nebraska Legislature as evidence that momentum is in their favor.

State lawmakers last year overrode a veto by Gov. Pete Ricketts to repeal the death penalty. Ricketts and other capital punishment supporters responded with a referendum petition.

The petition's success put the issue on the Nov. 8 ballot, meaning voters will decide whether to let the repeal stand or to undo it and put the death penalty back on the books.

Nebraska is 1 of 20 states that have done away with their death penalties. 8 have done so in the past decade alone.

That marks a major shift for a punishment that has been part of the United States since the early days of European settlement.

Punishment for murder, arson, horse-stealing

In 1776, when the Declaration of Independence was signed, all 13 colonies had the death penalty.

Most prescribed death for murder, arson, piracy, treason, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion and sometimes counterfeiting.

Some states developed longer lists of capital crimes, especially related to slavery.

In 1837 in North Carolina, for example, people could be executed for slave-stealing, hiding a slave with intent to free him, inciting slaves to rebel and circulating seditious literature among slaves.

In both Nebraska and Iowa, the death penalty dates to their pre-statehood days.

In Nebraska, the punishment was carried out by individual counties until the turn of the century.

The cases include the 1887 hanging of Jack Marion in Gage County. He was executed for the 1872 murder of John Cameron, his former traveling companion.

Marion maintained his innocence throughout 2 trials and an appeal. It turned out he was telling the truth.

Four years after the hanging, Cameron was found alive and well in Kansas City, Missouri.

Iowa ended its death penalty in 1872, only to see mobs take matters into their own hands. The death penalty was reinstated in 1879, in part to prevent vigilante lynchings.

Scope of death penalty limited

Opposition to capital punishment has had almost as long a history in the U.S. as the death penalty itself.

The essay "On Crime and Punishment" by Italian jurist Cesare Beccaria was especially influential. It was published in English in 1767.

In it, Beccaria argued for abolishing capital punishment. He said the sole justification for state-sponsored execution would be the rare case in which no other means could ensure the security of a nation. He also argued that capital punishment was ineffective in deterring evil-doing.

Reformers made some inroads during the nation's 1st century. Several states narrowed the list of capital crimes. Many also passed laws barring public executions.

Michigan became the 1st state to do away with the death penalty, in 1846. The number of other states without capital punishment rose and fell during the years that followed.

11 had abolished it by 1916, but only 4 were without it from 1939 through 1956.

Meanwhile, the number of executions in the U.S. reached an all-time high during the Great Depression. There were 197 executions in 1935 and 196 the following year.

Historian William McFeely noted the increase in executions during the 1930s came as mob lynchings of African-American men almost ceased.

Legal executions of African-Americans continued at disproportionate rates. From 1900 through 2002, 4,122 African-Americans were executed in the U.S., compared with 3,625 whites.

African-Americans never accounted for more than 12.3 % of the general population during those years, according to census figures.

A new wave of opposition to the death penalty arose during the 1960s, along with the civil rights movement and the Vietnam War protests.

Iowa was among the states that did away with their death penalty during that turbulent decade. Although 40 states maintained their laws, the number of executions fell to zero by 1968.

Polls showed that public support for the death penalty had dropped to 42 % in 1966, while opposition was at 47 %.

The wave culminated in 1972 with the U.S. Supreme Court's decision in a Georgia case involving an African-American defendant, William Henry Furman. The court ruled that the death penalty, as applied in most states, was unconstitutionally arbitrary and discriminatory.

The ruling effectively suspended the death penalty by overturning state laws, including Nebraska's law. Hundreds of death sentences nationwide were commuted to life imprisonment in the wake of the decision.

Country turns more conservative

But support for the death penalty rebounded strongly following the ruling, as the country turned more conservative.

States quickly revised their laws to comply with the court ruling and reinstate capital punishment. Nebraska did so in 1973. The 1976 Supreme Court, ruling in another Georgia case, gave the constitutional stamp of approval to the revisions.

The new laws required a balancing of aggravating and mitigating factors and required the sentencing phase of a death penalty case to be separated from the guilt or innocence phase.

35 states revived their death penalties by 1979, with another three doing so by 1995.

Iowa lawmakers debated reinstatement multiple times in the 1990s, but the proposals all failed, as did a bill introduced last year by Sen. Randy Feenstra, R-Hull.

It would have allowed executions in cases where a child was kidnapped, raped and murdered. Feenstra said he offered the proposal because of a pair of heinous murders of young girls, although he knew there was not support for changing the law.

"It was more of a conversation with other legislators and a conversation with society," he said.

By 1994, polls showed that 80 % of Americans backed the death penalty while only 16 % opposed it.

The support was spurred in part by a steep increase in crime during the preceding 2 decades.

But that represented the peak year of support for capital punishment, dating back to 1936, when the polling firm Gallup began asking about the issue.

The tide has been turning away ever since, with support for the death penalty dropping along with murder rates.

The most recent national poll, released at the end of September, showed that 49 % of Americans favored the death penalty and 42 % opposed it.

Backing for the death penalty appears higher in Nebraska, however.

Nebraska Governor (R) Pete Ricketts
Nebraska Governor (R) Pete Ricketts
More than 143,000 registered voters signed the referendum petition in 2015, enough to put the issue before voters and to keep the repeal law from taking effect before the vote.

An August survey of likely voters, commissioned by a pro-death penalty group, showed that 58 % would vote to keep the death penalty and 30 % would vote for the law repealing it. Opponents criticized the survey because it did not tell people that the death penalty would be replaced with life in prison.

Declining national support has been followed by an increase in the number of states eliminating the death penalty.

At the same time, those with capital punishment are sending fewer and fewer people to death row. Last year, 49 people were sentenced to death nationally, compared with 295 in 1998.

Executions also are dropping off. There have been 16 so far this year - the fewest since 1991, when 14 people were put to death. Eleven states with the death penalty have not executed anyone in at least 10 years. Nebraska's last execution was in 1997.

Few death sentences carried out

State and national observers say several factors are contributing to the most recent wave of opposition.

One is the number of death row inmates who have been exonerated: 156 nationally since the death penalty was revived in 1973.

Robert Dunham, executive director of the Death Penalty Information Center, said the growing power of DNA testing has proven some inmates innocent.

Their cases, in turn, have called into question other evidence prosecutors used to win convictions, from coerced confessions to prison informants who give false testimony.

Nebraska has had its own experiences with exonerations, including the 6 people wrongly convicted of a 1985 slaying in Beatrice, and the case of Darrel Parker, who was wrongly convicted in the 1955 rape and murder of his wife in Lincoln. None of the 7 were on death row, although the Beatrice 6 were threatened with the death penalty.

Dunham said there is strong evidence that innocent people have been executed in recent decades, although there are not formal exonerations of those people. Courts generally do not consider claims of innocence regarding people who are dead.

"We now know, and the American people accept, that there is a risk innocent people can be executed," he said.

A 2015 poll by the Pew Research Center found that 71 % of Americans believe there is "some risk" an innocent person will be put to death. Even among people who favor the death penalty, 63 % believe there is a risk.

But William Otis, an adjunct professor of law at Georgetown University and special counsel to President George H.W. Bush, said there are areas in which society is willing to risk innocent lives for a larger goal.

Higher speed limits, for example, get people to their destinations faster but mean more fatal accidents. The nuclear bombs dropped on Hiroshima and Nagasaki killed more than 200,000 people but likely speeded up the end of World War II.

"For some crimes it is worth it even though it has high costs," he said.

Another factor has been the emergence of conservative opponents basing their positions on pragmatic arguments.

Eric Berger, a law professor at the University of Nebraska, said such state senators played a critical role in the Nebraska repeal.

He said they may support capital punishment in theory but argue that in practice it has become a failed government program, one that costs too much and doesn't achieve its goals.

Death penalty cases cost more than those involving life imprisonment, according to numerous national studies.

"The death penalty costs Nebraska an average of $14.6 million annually."
"The death penalty costs Nebraska an average of $14.6 million annually."
A recent analysis by Creighton University economics professor Ernie Goss concluded that having the death penalty costs Nebraska an average of $14.6 million annually. Death penalty supporters contested his conclusions, saying the difference in costs is minimal.

Meanwhile, the long, cumbersome appeals process and the difficulties obtaining lethal injection drugs have meant that few death sentences are ever carried out.

No more than 2 % of death row inmates have been executed in any of the past 15 years.

"If we really care about the sanctity of life and about the victims of all those crimes, couldn't we put all that money to better use?" Berger asked.

Supporters of capital punishment, however, argue that getting justice for murder victims and their families is worth the costs and obstacles.

"I support it because some murders are so grotesque that prison is not enough," Otis said. "That is the reason I think the death penalty has continued to enjoy popularity."

Polls show that, by far, the top reason people back the death penalty is their belief that the punishment fits the crime. More than 1/2 gave that reason for their support in both 1991 and 2011 polls.

Other arguments have lost favor. 6 % of supporters in the more recent poll said the death penalty deters crime, down from 13 % in 1991.

Many supporters believe the death penalty is needed "for the worst of the worst," said Lisa Kort-Butler, an associate professor of sociology at the University of Nebraska-Lincoln.

"There seems to be a symbolic argument that this is something we have to have to say that we're tough on crime," she said.

Evolving - religious views

Another factor has been the evolution of religious positions.

While the Catholic Church previously taught that the death penalty was acceptable as a means to defend society, the church now is working to end capital punishment.

Pope John Paul II declared in a 1995 encyclical that modern society can protect itself from criminals without denying them the dignity of human life and the possibility of reform.

This summer, the current pontiff, Pope Francis, called for a world "free of the death penalty." Church leaders have been integral to the repeal effort in Nebraska.

A Pew poll this year found support for the death penalty had fallen to 43 % among Catholics, while it was at 69 % among white evangelical Protestants.

But even among evangelicals, attitudes are changing. A year ago the National Association of Evangelicals, which represents nearly 40 evangelical Christian denominations, revised its position statement on the death penalty to acknowledge differing views on the issue. The group's previous statement supported capital punishment.

The past few decades also have seen the United States become increasingly isolated in its use of the death penalty.

According to Amnesty International, an average of 3 countries have renounced the death penalty each year since 1990.

As of June, 103 countries had no death penalty, including Canada, Australia and almost all of Europe and Latin America. 6 countries allow it for exceptional circumstances only, and 31 have it but have a practice of not using it.

The 58 countries with the death penalty, however, include some of the world's largest: China, Russia, India, Japan and the United States.

They also include almost all of the Muslim majority countries. Islam accepts capital punishment for murder and crimes that harm or threaten the state.

Kort-Butler, the sociologist, and Otis, the Georgetown law professor, questioned whether Americans are influenced much by the international trends. He noted that the U.S. has a different history, culture, law and demographics.

"I think the death penalty is symbolic," Otis said. "For opponents, it is a symbol that the state is not going to go forward with killing out of principle. For supporters, it says we should have the moral confidence to say 'no' and mean it."

Source: Omaha World-Herald, October 16, 2016

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