Nebraska’s Death Penalty Repeal Bill Falls One Vote Short A measure to repeal Nebraska’s death penalty and replace it with a sentence of life without parole fell one vote short of moving to the second of three stages in consideration by the unicameral legislature. It was the first time the full legislature had debated the death penalty in nearly two decades. The measure’s defeat followed two days of debate about capital punishment, including whether decisions to impose the death penalty reflect social, economic or racial bias. In addition, some legislators criticized the state’s death penalty as arbitrary in nature. Legislators admitted that they wrestled with the issue as both a matter of public policy and conscience. Senator Brad Ashford, chairman of the Judiciary Committee, said that he found the punishment to be arbitrary because there are inmates serving life sentences in the state whose crimes were every bit as heinous as those committed by the people on Nebraska’s death row. Senator Tom Carlson, who classified himself as “pro-life,” said, “To be consistently pro-life, maybe I should oppose the death penalty.” In the end, Carlson and Ashford were both among the 24 legislators who voted to advance the bill for more debate. Twenty-five legislators voted against advacement. The bill’s sponsor, Senator Ernie Chambers, said he would try to win passage of a similar measure next year. (Nebraska State Paper, March 20, 2007).
Nebraska Repeal Bill Passes Unanimously in Committee For the first time in nearly two decades, members of the Nebraska’s unicameral legislature will have an opportunity to debate a bill that would repeal the state’s death penalty and replace it with a sentence of life without parole and an order of restitution. Members of the legislature’s Judiciary Committee unanimously advanced the bill, noting that their colleagues in the full senate should have a chance to debate the measure. The bill’s sponsor, Senator Ernie Chambers, introduced a similar measure in 1979 that won approval by the legislature, but was vetoed by then-Governor Charles Thorne. During the Judiciary Committee’s hearing on the bill, those testifying noted that capital punishment is more expensive than sentences of life without parole and urged passage of the measure because Nebraska’s current death penalty does not adequately address the potential for racial bias and wrongful convictions in capital cases. University of Colorado sociology professor Michael Radelet testified that capital punishment does not deter murder and that public support for the death penalty is waning. Former Senator Loran Schmit told the committee that he was an outspoken supporter of the death penalty for many years before he was a member of the Legislature. He said he changed his mind when he learned of the disparities in sentencing for those who commit murder. Schmit added, “I also thought the death penalty would be a deterrent. I no longer believe that.”(Lincoln Star Journal, February 1, 2007).
A study commissioned by the Nebraska legislature and released August 1 found that death sentences are almost 4 times more likely when the victim in the underlying murder was well-to-do (high socio-economic status) than when the victim is poorer, even when similar crimes are compared. This result raises the prospect that the lives of the wealthy are counted as more valuable in the criminal justice system than the lives of the poor. The study also found evidence of geographical disparities in seeking the death penalty. Prosecutors in urban counties were more likely to seek the death penalty than those in rural counties. This disparity was masked due to a reverse trend by Nebraska judges in handing down death sentences, with the urban judges handing down less death sentences. The study did not find racial bias in the application of Nebraska’s death penalty, nor did it find that death sentences were disproportionate to the crimes committed. The study looked at over 700 homicide cases that resulted in a conviction between 1973 and 1999, though only 177 “death-eligible” homicides were closely examined. (Executive Summary: The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973 – 1999); A Legal and Empirical Analysis).
In 1999, a bill was passed that provides funding for a study on the fairness of the application of the death penalty in Nebraska. The study will cost between $120,000 and $160,000 and will analyze the nearly 1,300 homicides committed in Nebraska since 1973 based on race, gender, economic status and the crimes themselves. The study, conducted by the Nebraska Crime Commission, was released on August 1, 2001.
Nebraska (4/3/20) — In a state post-conviction appeal, the Nebraska Supreme Court rejected a challenge to the state’s capital sentencing process filed by death-row prisoner Jeffrey Hessler.
Hessler argued that Nebraska’s three-judge sentencing proceedings violated his Sixth Amendment right to have a jury determine all facts necessary for a death sentence to be imposed. The court ruled that Hessler’s argument was untimely and therefore procedurally barred, and added that under the recent U.S. Supreme Court decision in McKinney v. Arizona, there is no constitutional requirement that the jury be the ultimate sentencer in a death penalty case.
Florida (4/2/20) — The Florida Supreme Court issued two death penalty decisions, one upholding the death sentence imposed on Raymond Bright in a 2016 capital resentencing hearing and the second declining to reconsider its ruling in State v. Poole in which it receded from its prior decisions requiring that capital sentencing juries unanimously agree to the death penalty before a trial judge may sentence a defendant to death. In the second case, it also clarified that Mark Anthony Poole is entitled to review of the other penalty-phase claims he had raised in his post-conviction petition that had not been addressed on the merits by the trial court in its prior ruling in the case.
California (4/2/20) — On direct appeal, the California Supreme Court upheld the conviction and death sentence imposed on James Michael Fayed in Los Angeles in 2011 for arranging for the murder of his estranged wife. At the time of the murder, the Fayeds were involved in divorce proceedings and were under federal investigation for alleged money laundering.
The court held that the prosecutor had engaged in misconduct in the guilt-phase closing argument by asking the jury to imagine what was going through the victim’s mind in the several minutes it took for her to die. However, it ruled that, given the strength of the evidence against Fayed, the misconduct was not prejudicial. It declined to rule on a conflict of interest claim Fayed raised on appeal after his prosecutor became a partner in his trial counsel’s law firm, saying that “because the partnership … began after defendant’s capital trial ended, relevant facts relating to any conflict of interest issue are not part of the record.”
Missouri (4/1/20) — The U.S. Court of Appeals for the Eighth Circuit has reversed itself and denied Missouri death-row prisoner Ernest Johnson’s challenge to the constitutionality of Missouri’s use of pentobarbital to execute him by lethal injection. The U.S. Supreme Court had remanded the case to the circuit with directions to reconsider Johnson’s case in light of the Court’s 2019 lethal-injection decision in Bucklew v. Precythe.
The Eighth Circuit ruled that Johnson — who had presented evidence that, because of his medical condition, lethal injection by pentobarbital would cause him to experience a “severely painful” “violent seizure” — had met Bucklew’s first requirement of pleading that the state’s execution process was cruel. However, the court said that he longer met the requirement of proving that Missouri had a less painful alternative method to carry out his execution because the alternative method he had offered — nitrogen hypoxia — has never been used for that purpose before and, under Bucklew, Missouri is not required to use an “untried and untested” method to execute a prisoner.
Texas (4/1/20) — The Texas Court of Criminal Appeals denied relief to death-row prisoners in three separate cases.
In a decision on direct appeal, the court affirmed the conviction and death sentence of Billy Joel Tracy for the 2015 prison killing of a correctional officer.
In an unsigned, unpublished order on a subsequent application for state habeas corpus relief, the court denied three claims presented by Jaime Cole challenging the effectiveness of the representation provided to him in the penalty phase of his capital trial. Cole alleged that counsel had been ineffective when they failed to (1) investigate and present mitigating evidence of Cole’s exposure to neurotoxins and brain damage; (2) develop and present reliable evidence that he would not pose a future danger to society if sentenced to life; and (3) object to the trial court’s statement to the jury that the case would be automatically reviewed on appeal if they sentenced Cole to death.
In another unsigned, unpublished order on a successive state habeas petition, the court upheld Brian Davis’s death sentence, ruling that he had “not made an adequate prima facie showing regarding his claim of intellectual disability.”
