Popular Democracy and Capital Punishment in Nebraska

February 10, 2016

lethal injection chair execution2015 saw fewer individuals executed and fewer individuals sentenced to death in the United States than any year since 1991 and the early 1970s (pre-Furman v. Georgia), respectively.  It was the 6th straight year that executions had declined.  Many articles have been written about the slow decline of the death penalty in America.

Usually, discussions of the death penalty focus on Texas (though Oklahoma has been prominently featured of late).  The state that I find fascinating, however, is Nebraska.  In 2015, Nebraska became the seventh state to repeal the death penalty (not counting those states that made no provision for the death penalty when the Supreme Court’s decision in Gregg v. Georgia reinstated the death penalty nationally).  But after Nebraska’s legislature* repealed the death penalty (and overrode a gubernatorial veto on the same), events took a turn not seen in other states.

The Cornhusker state is one of a few where actions of the legislature can be overturned by referendum. Governor Pete Ricketts, who had vetoed the repeal only to see that repeal overridden, not only supported the referendum effort to overturn the repeal, he personally donated much of the financial backing for the initiative.

Per the Nebraska Constitution, once the repeal petition received enough signatures to get the referendum on the ballot, the repeal bill was suspended.  On Westlaw, affected statutes, including repealed sections authorizing the capital punishment as well as new sections describing the effects of repeal and transition away from execution, are accompanied by a note that the legislated change “been suspended by operation of Article III, § 3, of the Nebraska Constitution; see Historical and Statutory Notes.”

Nebraska’s last execution was carried out in 1997.  There are currently 10 individuals on death row in Nebraska.  They’ll find out in November what happens next.

  • (Aside: Nebraska is the only state in the county to have a unicameral legislature.  This fact isn’t particularly relevant to the death penalty repeal, but it’s pretty interesting and I feel like I can’t mention the Nebraska legislature without mentioning this fascinating fact but somewhat distracting fact.)