A coalition of death penalty opponents in Nebraska wants to ask voters in their state to end capital punishment in a 2024 referendum. This is at best a risky strategy.
A look at history helps us understand why.
But before turning to that history let’s first examine what the Nebraska abolitionists are saying about their plan. On March 16, representatives of Nebraskans for Alternatives to the Death Penalty, the ACLU of Nebraska, the Nebraska Catholic Conference, and Amnesty International joined Democratic State Senator Terrell McKinney in calling for a referendum to consider an amendment to the state constitution prohibiting capital punishment.
Those abolitionists cite the changing national climate surrounding capital punishment as a reason for hope. But they will first have to get the state’s unicameral legislature to agree to put that question on the 2024 ballot.
As a first step in that process, its Judiciary Committee held a public hearing on the proposal last week. During the hearing, no one appeared to oppose it. But that doesn’t mean that there will be smooth sailing as their proposal moves through the legislature. In fact, the Nebraska Attorney General’s Office has already come out against it.
Nebraska’s abolitionists know what they are up against and promise to do the work necessary to educate legislators about the death penalty’s arbitrary and discriminatory application, its costliness, and its cruelty. If they succeed there, they hope that those same arguments will convince Nebraskans that the time has come to end capital punishment.
But haven’t we seen this all before?
In fact, Nebraska’s abolitionists want a do-over of the 2016 election when the state’s voters were also given the chance to cast votes for or against the death penalty. But last time, it was death penalty supporters who pushed to put it on the ballot.
They did so, as The North Plate Post notes, following “a historic decision by the Nebraska Legislature in 2015 to repeal capital punishment — a repeal that overcame a veto by then-Gov. Pete Ricketts. The millionaire governor, along with his family, helped finance the petition drive to put the matter on the ballot.”
The campaign to restore the death penalty was led by Nebraskans for the Death Penalty while Retain a Just Nebraska, spearheaded the opposition. The latter was aided by the Nebraska Catholic Conference which launched a statewide education campaign urging voters to defeat the restoration measure.
Surviving family members of murder victims were enlisted on both sides of the campaign. Some said that their tragic experiences persuaded them that the death penalty accomplished nothing and should be ended. Others wanted to restore capital punishment so that offenders could get their just deserts and victims’ families could achieve closure.
Both sides of the campaign were well financed. Retain a Just Nebraska raised a total of $2.7 million, while Nebraskans for the Death Penalty raised $1.2 million. However, despite abolitionists outspending their opponents by a margin of over two to one, Nebraska voters decided to retain the death penalty by a 61%–39% margin.
As research I conducted with John Malague and Sarah Wishloff shows, what happened in Nebraska in 2016 was by no means anomalous.
That same year Donald Trump, an avid death penalty supporter, was elected President and the results of ballot measures in California and Oklahoma ensured a future for capital punishment in those states.
California voters narrowly rejected Proposition 62, a measure that would have ended the death penalty and replaced it with life imprisonment without parole. By a similarly narrow margin, they approved Proposition 66, which was designed to speed up the death penalty process by making a series of changes in the way death cases were handled in the state.
Two-thirds of Oklahoma voters supported State Question 776, which declared that the death penalty could not be considered cruel and unusual under that state’s constitution. It also included a provision making it possible for the state to employ the gas chamber, electrocution, or firing squad if lethal injection is ever declared unconstitutional.
Since the start of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once. From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968. Whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.
Yet things seem different today. America is in a period of national reconsideration of the death penalty. More states have abolished it since 2007 than in any other comparable period in American history. And support for the death penalty as measured in national public opinion surveys is down.
This is also true in Nebraska, where less than 30% of those surveyed now say that the death penalty, as opposed to life in prison, is the “appropriate for people convicted of murder.”
So why not try again to get voters to repeal capital punishment as abolitionists in Nebraska want to do?
As Malague, Wishloff, and I have previously argued, voting on the question of whether to retain or abolish capital punishment is different from responding to public opinion polls. The most obvious difference is that votes come at the end of political campaigns which function, to borrow sociologist Joseph Gusfield’s phrase, as “symbolic crusades.”
The important and successful work that death penalty abolitionists have recently done to reframe the debates about capital punishment has not yet succeeded in the electoral arena. The risk of executing the innocent, the problem of racial discrimination, and the possibility of botched executions have been crucial in changing the debate about capital punishment in state legislatures, but they have had much less salience when the death penalty is on the ballot.
While many legislators and executives are now willing to face the political consequences of abolishing the death penalty, voters have lagged behind. Both here and in Europe, history suggests that death penalty abolition is more likely to come from the top down than it is from the bottom up.
Over the course of the twentieth and into the twenty-first centuries, death penalty ballot campaigns have served mostly to mobilize the fear that sustains capital punishment. And abolitionists have yet to devise an electoral strategy to successfully counter that appeal.
There is, I regret to say, little reason to believe it will be different if Nebraska voters are asked to weigh in again next year.
Source:
verdict.justia.com, Austin Sarat, March 20, 2023. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
