Voters in Three States Will Weigh in on Death Penalty

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By Lance J. Rogers

July 14 — The future of the death penalty in California, Nebraska and Oklahoma may be decided at the ballot-box this November.

Nebraska voters will decide whether they want to put capital punishment back on the books, just 18 months after the state legislature voted to replace the death penalty with life without parole.

Californians will be confronted with a pair of competing initiatives. One would replace all death sentences with life without parole, whereas the other would not only reiterate the state's commitment to the death penalty but would also speed up the execution process.

The referendum in Oklahoma invites voters to strengthen their commitment to capital punishment by amending the state constitution to clarify that the death penalty isn't cruel and unusual and to clarify that any method of execution not prohibited by the U.S. Constitution will be allowed.

‘End it or Mend it.'

Californians have a stark choice: fix the problems that have prevented the death penalty from being enforced or do away with capital punishment altogether.

“The voters can either end it or mend it,” Kent Scheidegger, legal director and general counsel for the California-based Criminal Justice Legal Foundation, told Bloomberg BNA.

Proposition 62 repeals the death penalty and replaces it with life imprisonment without possibility of parole for violent killers convicted of first degree murder.

It applies retroactively and requires that the convicted killers work while in prison and pay 60 percent of their wages to compensate their victims.

Proponents of the initiative argue that the current system is so dysfunctional, ineffective and expensive that capital punishment should be scrapped.

“Since 1978, California has spent more than $4 billion on a death penalty system that has sentenced nearly one thousand criminals to death by execution but has executed only 13 people,” said Mike Farrell, the former M*A*S*H actor and death penalty activist who is the official proponent of Proposition 62.

A similar ballot measure, Proposition 34, was defeated in 2012 by a 54 percent to 48 percent vote.

There are more than 700 inmates on California’s death row, which is almost three times as many as in Texas. However, only 13 inmates have been executed in California since the death penalty was revived by the U.S. Supreme Court in 1976. During that same time frame, Texas executed more than 530 death row prisoners.

Differing Definitions of ‘Reform.'

The competing ballot measure in California, Proposition 66, expressly retains capital punishment but adds a series of reforms designed to streamline the post-conviction appeals process. It imposes tighter filing deadlines, limits successive petitions, requires appointed lawyers in noncapital cases to take death penalty appeals and makes attorneys available for post-conviction matters at the time of sentence.

“Justice is not easy, and it is certainly not gentle. But justice denied is not justice,” said former NFL player Kermit Alexander, the official proponent of Proposition 66. Alexander's mother, sister and two nephews were murdered by a man who was sentenced to death more than 30 years ago and has not been executed.

Scheidegger said that dueling initiatives aren't common in California but that they aren't exactly rare either.

If both initiatives pass, the one that gets the most “yes” votes will prevail, Scheidegger said.

Many of these streamlining measures have been introduced multiple times in the legislature, but they always get killed in committee, Scheidegger told Bloomberg BNA.

Some observers don't see these streamlining proposals as genuine reforms, however.

“Forcing lawyers who don't want to or aren't capable of handling capital cases to take on death penalty appeals and related post-conviction matters isn't reform,” Robert Dunham, the executive director of the Death Penalty Information Center, told Bloomberg BNA.

PFIZER TAKES A STAND

It just got a lot more difficult for states to find the drugs they need carry out executions by lethal injection.

Drug giant Pfizer announced March 28 that it was restricting its distribution of propofol, pancuronium bromide, midazolam, hydromorphone, rocuronium bromide, vecuronium bromide and potassium chloride to wholesalers, distributors, and direct purchasers under the condition that they not resell those products to correctional institutions for use in lethal injections.

“The initiative also artificially constricts the time frame for lawyers to pursue those appeals and for judges to decide the issues,” he said.

Genuine reform would involve things like eliminating junk science, correcting problems with eyewitness identification and ensuring that interrogations are done in noncoercive ways, Dunham added.

California voters have their work cut out for them this year because the secretary of state has certified 17 different ballot measures for the Nov. 8 election, including proposals to raise the cigarette tax by $2 per pack, to overturn the law prohibiting plastic single-use carryout bags and to require the use of condoms in pornographic films.

Nebraska: Overriding the Override

Nebraska last year became the 20th jurisdiction to abolish capital punishment when the state legislature overrode the governor's veto of LB 268, which replaced the death penalty in that state with life without parole (97 CrL 240, 6/3/15).

But this November, Nebraskans will have an opportunity to put capital punishment back on the menu.

The “ Nebraska Death Penalty Repeal Referendum” asks voters to repeal LB 268 and keep the death penalty as a possible penalty for first degree murder.

Supporters of the referendum argue that the citizens of this traditionally conservative state were ill-served by their legislators.

“The death penalty battle today has largely become one of grass-roots supporters versus elitist opponents,” said Scheidegger.

There was an “organized and well-funded” campaign that resulted in a narrow override of the governor's veto last year, but this referendum puts the decision back in the hands of the citizens, Scheidegger told Bloomberg BNA.

The death penalty is legal in 31 states. Nineteen states and the District of Columbia have outlawed capital punishment.

Technical Challenge Fails

The Nebraska Supreme Court gave referendum supporters a boost on July 8 when it turned aside a technical challenge raised by anti-death penalty forces ( Hargesheimer v. Gale, No. S-16-107, 2016 BL 219616 (Neb. July 8, 2016)).

Referendum opponents argued that the ballot measure was invalid because it didn't list Republican Gov. Pete Ricketts as a formal “sponsor.” Ricketts and his family gave financial and other support to the drive. A person doesn't become a sponsor just because they supported and participated in the petition process, the court said.

“The question in Nebraska is, ‘what are we going to see in the debate?' ” said Dunham.

“What you would hope to see in the debate is an acknowledgement that there are risks to the death penalty and an attempt to demonstrate that the death penalty has benefits that outweigh those risks and then let the public decide,” he said.

Instead, he continued, “we're seeing inaccurate arguments that the death penalty is a deterrent, when statistics show that the murder rates in states with the death penalty are often higher than in states without the death penalty.”

Okla. Proposes Amending Constitution

Oklahoma State Question 776 would add a new section to Oklahoma's counterpart to the Eighth Amendment making it clear that the death penalty is not “cruel and unusual,” that all methods of execution are constitutionally allowed, and if an execution method is deemed invalid, “the death sentence shall remain in force until the sentence can be lawfully executed by any valid method.”

“It looks like Oklahoma just wants to iron plate its death penalty with a constitutional amendment that blocks state constitutional challenges,” Scheidegger said.

Dunham said this is the first time that a state has tried to block its courts from ruling that the death penalty—or the way it is carried out—violates constitutional guarantees against cruel and unusual punishment.

Oklahoma has been under the microscope for the way it implements the death penalty ever since the highly publicized, bungled lethal-injection execution of Clayton Lockett in 2014. He reportedly writhed in pain and thrashed around on his gurney as officials struggled to reinsert an intravenous line that became dislodged.

Just one year later, Oklahoma was in the news again when the U.S. Supreme Court in 2015, by a narrow 5-4 vote, paved the way for the state to proceed with the execution of Oklahoma inmate Richard Glossip after it held that the state's lethal-injection protocol—specifically the use of the controversial drug midazolam—doesn't violate the constitutional ban on cruel and unusual punishment ( Glossip v. Gross, 2015 BL 206563 (U.S. 2015); 97 CrL 402, 7/1/15).

The case re-ignited a national debate on capital punishment when Justice Stephen G. Breyer suggested in dissent that it is time for the justices to re-evaluate whether the death penalty itself violates the constitution's proscription against inflicting cruel and unusual punishment.

Oklahoma stayed in the spotlight when, several months after the Glossip decision, the state put executions on indefinite hold while the attorney general's office investigated a snafu that resulted in prison officials receiving an unapproved drug to use in the state's lethal injection protocol.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

California Proposition 62 is available at http://src.bna.com/gR4.

California Proposition 66 is available at http://src.bna.com/gR8.

Nebraska's “Death Penalty Repeal Referendum” is available at http://src.bna.com/gRw.

Oklahoma's State Question 776 is available at http://src.bna.com/gVL.

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