The Washington PostDemocracy Dies in Darkness

Nebraska just banned the death penalty, but opponents say the fight isn’t over. What happens next?

Nebraska lawmakers debated the death penalty repeal bill on Wednesday. (Nati Harnik/AP)

On Wednesday, Nebraska became the first state in two years to abolish the death penalty. Lawmakers narrowly voted to override a veto from the governor, deciding by a single vote to make Nebraska the 19th state in the country without capital punishment.

For opponents of capital punishment, the bill’s passage offered a moment of relief after a long, emotional debate. But people who wanted the death penalty to remain the law of the land in Nebraska say the argument is far from over.

“Those of us that fought very hard to keep the death penalty in place in Nebraska are disappointed, but we know this is just the beginning of another long discussion and a continued long discussion about this issue in our state,” state Sen. Beau McCoy said in an interview after the override vote Wednesday.

McCoy says he and other opponents of the bill are hoping to get the issue onto the ballot next year. Meanwhile, there is the question of what happens to the inmates currently on death row, as another high-ranking Nebraska official has vowed to fight a part of the bill that deals with those men.

What happens to death row inmates when there is no more death row?

First, it is important to note that the death penalty repeal bill did not automatically go into effect on Wednesday. Bills in Nebraska go into effect three months after the legislature adjourns. The last day on the session’s calendar is June 5 — the end of next week — so if the legislature sticks to that schedule, the bill would go into effect in early September.

[Why the U.S. Supreme Court is considering lethal injection again]

But if the law does go into effect (more on that below), the state still has 10 inmates on death row. There were 11 inmates when the legislature passed that bill last week, but the state Department of Corrections said that an inmate died Sunday.

The new bill states that these inmates will instead be given life sentences. The law says that in any case in which “the death penalty has been imposed but not carried out” before the repeal goes into effect, deaths sentence are converted to life in prison.

However, the state appears ready to fight this particular part of the new law. Doug Peterson, the state’s attorney general and an outspoken critic of repealing the death penalty, said Thursday that he will challenge attempts to alter these sentences. 

Peterson’s office said in a statement that it believes this section of the law is unconstitutional, arguing that only the state’s Board of Pardons can change court-imposed sentences.

“Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State’s authority to carry out the death sentences previously ordered by Nebraska’s courts for the 10 inmates now on death row,” his office said.

What have other states done to death row inmates after abolishing the death penalty?

Nebraska is the seventh state in the country to abolish the death penalty in the plast decade. Different states have handled this issue in various ways recently.

In 2013, Maryland abandoned capital punishment, but that did not apply to the five prisoners on the state’s death row at the time (one of whom later died of natural causes). Late last year, as then-Gov. Martin O’Malley prepared to leave office, he said he would commute the sentences of the four remaining inmates, eventually giving them sentences of life in prison without parole. 

[A look at executions that went awry last year]

Similarly, when Connecticut (in 2012) and New Mexico (in 2009) outlawed the death penalty, they did not apply that to the people already on death row. And a Connecticut jury sentenced a man to death there last year for a killing committed before the death penalty was banned.

Meanwhile, when Illinois abolished the death penalty in 2011, then-Gov. Pat Quinn also announced he was commuting the sentences of the state’s death-row inmates and sentencing them to life imprisonment without parole. New Jersey’s then governor, Jon Corzine, did the same thing in 2007, signing a bill repealing the death penalty and then commuting the state’s eight death-row inmates.

In New York, the issue was resolved by the courts. The New York Court of Appeals effectively suspended the death penalty in 2004, and the same court threw out the sentence of the last inmate on death row in 2007.

How supporters of capital punishment in Nebraska could get this issue onto a ballot

In Nebraska, while the attorney general said he will fight one portion of the law, other opponents are looking at how to undo the entire thing. Shortly after the vote on Wednesday, McCoy said he was forming of a group called Nebraskans for Justice, which is aimed at putting the death penalty issue before voters next year.

“I have heard from an enormous number of Nebraskans…that are reaching out to help, offering to send money in order to help with this effort, who want to put this to a vote of the people, so Nebraskans as a whole have an opportunity to weigh in on this issue,” said McCoy, a Republican who represents part of Douglas County, the state’s largest county.

McCoy said his group would spend the coming weeks organizing and figuring out how, precisely, to go about this task. That will involve meeting with community groups and civic leaders as well as other Nebraska residents.

Nebraska has some very recent experience with pushing high-profile issues onto the ballot. Last year, supporters of a statewide minimum wage increase were able to get that topic before voters in the general election, and the measure passed.

To get a referendum on the ballot in Nebraska, supporters need to have a certain number of signatures depending on what, precisely, they are trying to do. A referendum suspending a law from taking effect requires the signatures of 10 percent of registered voters, according to the office of John Gale, the Nebraska secretary of state. However, a referendum aimed at repealing the law, rather than suspending it, would take 5 percent of these voters.

People who want to repeal the new bill also have a limited window to act, because they need to submit signatures within 90 days of the close of the legislative session (before the law goes into effect, basically). If they get enough signatures, the referendum can appear on the ballot during the general election in November 2016.

Referendums can only be used to repeal laws passed by the legislature during the most recent session. If proponents of capital punishment want to amend the state’s constitution, that would require 10 percent of registered voters, while an entirely new law would require 7 percent of these voters. These options would allow more time, because signatures have to be submitted only in July 2016.


A third of the states to abolish the death penalty have done so since 2007

Why the U.S. won’t stop executing inmates even as a Supreme Court ruling looms