Yesterday, Nebraska’s legislature abolished the state’s use of capital punishment, voting 30–19 to override Republican governor Pete Ricketts’s veto of a bill that had repealed the state’s death penalty law. As the New York Times reports, it is the first time in 40 years that a conservative state has banned the death penalty, and Nebraska now becomes the 19th state, along with the District of Columbia, to forbid capital punishment. The last conservative state to do so was North Dakota in 1973, though six blue states have banned the practice since 2006.
Prior to the vote, Nebraska had 11 inmates on death row but had been unable to execute anyone for 17 years. Indeed, even if they had not repealed the practice, the state, which relied on the procedure of lethal injection after banning the electric chair in 2009, would have had the same difficulty that most other death penalty states currently have: a decisive shortage of lethal injection drugs, after European manufacturers decided it was no longer ethical to sell state governments the components they need to make their lethal injection cocktails. According to the Times, even Texas, which leads the nation in executions by a considerable margin, only has enough drugs to execute one more prisoner.
The endgame in Nebraska came after months of debate and previous attempts by the state’s unicameral legislature to repeal the law. The Times notes that death penalty opponents “were able to build a coalition that spanned the ideological spectrum by winning the support of Republican legislators who said they believed capital punishment was inefficient, expensive and out of place with their party’s values, as well as that of lawmakers who cited religious or moral reasons for supporting the repeal.” Along those lines, The Atlantic’s Russell Berman spoke with Marc Hyden, of the group Conservatives Concerned About the Death Penalty, regarding his rationale for opposing capital punishment:
[Said Hyden,] “It’s not pro-life because it risks innocent life. It’s not fiscally responsible because it costs millions more dollars than life without parole.” Yet Nebraska’s bumbling and occasionally shady attempts to carry out death sentences—along with incidents in neighboring states like the botched execution of Clayton Lockett in Oklahoma—have given rise to another argument that sells among conservatives: the death penalty is just another example of government run amok.
“At the end of the day, this is just another big government program that’s really dangerous and expensive but doesn’t achieve any of its goals,” Hyden told me, summarizing his pitch to Republicans. “They don’t need to ask themselves, ‘Do some people deserve to die?’ The question they need to ask themselves is, do they trust an error-prone government to fairly, efficiently and properly administer a program that metes out death to its citizens? I think the answer to that is a resounding no.”
Support for the death penalty has slowly fallen over the past couple of decades, from a high of 80 percent in favor in the mid-1990s to just over 60 percent currently, according to Gallup. That is actually near a 40-year low, but the longer history of public opinion on the death penalty is much more unstable.
She goes on to note that a primary reason for that instability is the shifting influence of fear and distrust among Americans:
“There are spikes in death-penalty support appearing during particular eras of what can be described as fear mongering,” contended Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit organization that studies the policy. He explained that during the “red scare” of the 1950s, American support for the death penalty picked up. It fell off in the early 1960s, only to pick up again in the late 1960s and early 1970s after a rash of high-profile assassinations — Robert F. Kennedy and Martin Luther King Jr., for example, and the attempted assassination of George Wallace. All of that contributed to a national conversation about the death penalty as the Supreme Court in 1972 found some death penalty statutes to be unconstitutional (effectively ending the practice for several years), but a 1976 decision opened the doors again. Then, the racially charged political rhetoric on crime in the 1980s (think Willie Horton) likewise fueled that support, according to Dunham’s explanation.
Conversely, if a culture of fear contributes to support of the death penalty, public distrust of the government turns people against the policy, Dunham explains. During the Vietnam War era, when people started to question the government’s choices, they also questioned the death penalty as a valid form of punishment.
So theoretically, in the age of bogeyman Obama, NSA overreach, and Jade Helm paranoia, death penalty support among conservatives should be falling off a cliff. But looking at the fear dynamic, if there are additional terrorist attacks here in the U.S., would support for the death penalty then tick up? Looking at the high-profile case of Boston Marathon bomber Dzhokhar Tsarnaev, who was recently sentenced to die under federal death penalty law, an April CNN/ORC poll found that 53 percent of Americans thought he should be executed. In addition:
Fewer feel Tsarnaev ought to face the death penalty than said so about Timothy McVeigh following his conviction for carrying out the bombing of the Alfred P. Murrah federal building in Oklahoma City in April 1995. An August 1997 CNN/USA Today/Gallup poll found that 64% of Americans felt McVeigh ought to face the death penalty for his crimes, 34% preferred life in prison.
Meanwhile, when the Boston Globe commissioned a Massachusetts poll on the same question, also in April, they discovered that “although nearly a third of Massachusetts residents say they support the death penalty for egregious crimes, less than 20 percent [supported executing Tsarnaev]”.
What impact Nebraska’s move will have on the national debate remains unclear, but it does seem possible the news will help convince more conservatives to reconsider their position. In the meantime, with lethal injection drugs unavailable, Utah recently reauthorized the use of the firing squad, a move three other conservative states are also considering.