Erdman Edition: Repeal of Death Penalty to be Debated (for the 3rd Time in Two Years)

On Tuesday, March 25th, the Legislature will debate LB 1063 which repeals the death penalty. Sen. Chambers has introduced a bill to repeal the death penalty every year since 1976.

In 2007, twenty-four Senators voted to repeal the death penalty while twenty-five Senators voted against the repeal. I voted against the repeal of the death penalty. The fact that all forty-nine Senators voted is a testament to the members of this Legislature - no one "sat it out". Anyone who observed the Legislature during the debate last year knows the emotion and the weight that accompanies this issue.

Nebraska is the only state that has electrocution as the sole means of execution. Because of our unique status compared to other states, it was possible that a court could rule that electrocution was cruel and unusual. To prevent that possibility, I introduced legislation in 2003 and 2005 to change from electrocution to lethal injection. Those attempts failed - not for lack of votes - but because the Speaker in those sessions would not schedule the bill for debate.

In February, the Nebraska Supreme Court's issued State v. Mata which held that electrocution violates Nebraska Constitutional provision against cruel and unusual punishment in Article I, Section 9. In the same opinion, the court admitted that the "cruel and unusual punishment" language in Article I, section 9 and the 8th Amendment of the US Constitution are identical. The US Supreme Court has ruled that electrocution is constitutional under the 8th Amendment so, in order to circumvent that ruling the court chose to use Nebraska's Constitution to find electrocution is unconstitutional. Their decision was heavily criticized by Chief Justice Heavican in his lone dissent from the other justices in Mata. Still, in the same opinion the sentence of death for Raymond Mata Jr. was affirmed by the court.

Opponents of the death penalty will try to use this case to support repealing the death penalty entirely. The fact is that this case only compels us to adopt another means of carrying out the sentence. Nebraska faced a similar situation in 2002, when Ring v. Arizona was handed down by the US Supreme Court. Their ruling required states to change the way they sentenced individuals to death. Without changing our law then, we could not have sentenced anyone to death. We didn't repeal the law; instead we made the required changes to our sentencing procedures to ensure we had a death penalty that was capable of being carried out. Now we need to change the method; different obstacle, same process for a solution.

Other issues will still be raised to try to repeal the death penalty. Some argue the death penalty is not a deterrent. I am aware of at least 8 independent studies done since 2001 that show the death penalty is a deterrent. Still others who favor repealing the death penalty cite studies claiming it costs more for an execution than life imprisonment. Yet those studies omit the costs of geriatric care required for inmates sentenced to life imprisonment without possibility of parole. That cost is believed to be an additional $500,000 to $750,000 per inmate. Those studies also add up all of the costs for every trial of every person which the death penalty was sought and divides them by only those who were actually executed - hardly an honest analysis of the costs.

I have and will continue to support the death penalty in Nebraska and will vote against LB 1063. A vast majority of Nebraskans share my position. A recent poll of Nebraskans showed that 76% of Nebraskans support the death penalty and only 18% would support a bill which would repeal the death penalty and replace it with life imprisonment without parole, as LB 1063 requires.

The Legislature is nearing the end of the session and many major issues await debate. I welcome your opinions, insights, and comments. Please contact me at my Lincoln office either by mail: Sen. Philip Erdman, District 47, P.O. Box 94604, Lincoln, NE 68509-4604; by email: perdman@leg.ne.gov; or by phone: (866) 800-7445.