LINCOLN — The most ardent supporter of capital punishment has left the Nebraska Legislature.
The harshest critic is back.
And some newly elected state senators oppose the death penalty, unlike the folks they replaced.
As lawmakers gird for an emotional debate Monday on a death penalty bill, supporters voice hopes that a repeal could happen this year. They say some unlikely conservatives may join their cause due to the higher legal and emotional costs of prosecuting such cases.
“This may be the first time in a long time that we have enough senators to repeal it,” said State Sen. Sara Howard of Omaha, who was elected in November.
“I'm optimistic, in a freshman way,” she said.
That might be overly optimistic.
Gov. Dave Heineman still supports the death penalty and would likely veto any move to repeal it.
And a leading proponent of capital punishment, Sen. Scott Lautenbaugh of Omaha, indicated Friday he would likely mount a filibuster to thwart any repeal attempt.
Halting a filibuster requires a supermajority of senators, 33 of the 49 lawmakers, a high bar even for less emotional issues.
“I'll do whatever it takes to stop it,” Lautenbaugh said.
That death penalty opponents envision a majority of senators, 25, will support an end to capital punishment represents a dramatic shift at the State Capitol. The last time capital punishment came to a formal vote, in 2009, only 13 senators voted in support of repeal.
But things have changed since then.
Sen. Mike Flood of Norfolk, a leading proponent of the death penalty and former speaker of the Legislature, has departed due to term limits.
Meanwhile, Sen. Ernie Chambers of Omaha, who has mounted annual assaults on capital punishment during his 39 years in office, is back. He is promising another all-out effort to repeal it. His proposal, Legislative Bill 543, would replace the death penalty with a sentence of life in prison without the possibility of parole.
There's some momentum nationally. Three states — Maryland, Connecticut and Illinois — have repealed the death penalty since 2009.
Nebraska is now one of 32 states that retain capital punishment. Neighboring Iowa dropped the death penalty in 1965.
If Nebraska repealed the death penalty, it would be an exception. The other states are much less conservative, and had governors who supported an end to capital punishment.
But death penalty foes think that the exoneration of several convicted murderers due to DNA tests is helping change some opinions. Also, they say, the added expense and additional years of litigation is leading even past supporters of the death penalty to question if it's worth it when so many cases get reduced to life sentences anyway.
“The policy just doesn't work,” said Stacey Anderson, executive director of Nebraskans for Alternatives to the Death Penalty. “We've tinkered with it for 30 years, to make it better, more efficient. But it's produced three executions (in Nebraska) and a whole lot of frustration, and wasted a whole lot of taxpayer money.”
How much has been spent is the subject of fierce disagreement.
Richard Dieter of the Washington, D.C.-based Death Penalty Information Center told Nebraska lawmakers earlier this year that all studies agree that prosecuting death penalty cases was “far more expensive,” though the costs vary by state.
A Maryland study, Dieter said, estimated the costs of a death sentence at about $3 million, three times the cost of sending an inmate to life in prison. A Kansas study indicated that a death penalty trial costs 16 times more than a murder trial carrying only the possibility of a life sentence.
Death penalty foes say the high cost needs to be weighed against the results. In Nebraska, there have been 33 men sent to death row since capital punishment was reinstated in 1973. But 14 had their sentences reduced, and five either died of natural causes or suicide.
The state has seen only three executions in 40 years. The last was in 1997. Eleven men now sit on death row. One, Michael Ryan, convicted of two murders related to a Rulo, Neb., cult, has been there for 34 years.
“Is this really the best use of our resources?” said Sen. Steve Lathrop of Omaha, a leading death penalty opponent.
A report released Friday by the American Civil Liberties Union concluded that death penalty cases require nearly five times as many appeals as life sentence cases and take an average of 13 years to resolve.
Lathrop said Nebraska has another problem. The state's supplies of sodium thiopental, one of three drugs required to carry out a lethal injection, will expire in December.
Because pharmaceutical companies have stopped selling that drug for use in executions, that would force Nebraska to change its execution protocol to utilize another drug, an administrative process that could take a year. Lathrop said that also would open up a whole new round of legal challenges, further delaying any executions.
Anderson, head of the Nebraska death penalty opposition group, is the first Republican to head that organization. She said conservatives are realizing the death penalty doesn't reduce violent crime but is instead another “wasteful and inefficient” government program that needs to end.
But the Nebraska Attorney General's Office has long contended that the costs of handling death penalty cases are overstated and are part of normal office operations. Death cases involve 1 percent or less of the office's total prosecution costs, said spokeswoman Shannon Kingery.
And plenty of death penalty proponents say any extra cost is worth it, because certain especially heinous crimes warrant the ultimate penalty.
“Our whole corrections system is very expensive,” said Sen. John Nelson of Omaha. “But if a person chooses to murder someone, with premeditation ... then the state has the right and authority to carry out (an execution).”
Sen. Jim Scheer of Norfolk, elected in November to replace Flood, said the cost of the death penalty “is not important. It's the justice.”
His district experienced one of the most shocking murder cases in state history. Three gunmen walked into a Norfolk bank in 2002. In about 60 seconds, they shot and killed three bank employees and two customers. They fled without taking a dime.
“I believe that in some instances, that being one of them, there should be the ultimate penalty,” Scheer said.
He noted that in the Norfolk bank case, a videotape taken by surveillance cameras left no doubt about the identity of the killers, who are all now on death row.
But other newly elected lawmakers have brought new views on the issue.
Howard replaced a senator whose last vote on the death penalty was in support — her mother, former Sen. Gwen Howard.
Sara Howard said her mother had a personal reason for voting against repealing the death penalty in 2009: a murder in their central Omaha district occurred at a convenience store that she had allowed Sara and her sister to walk to alone as young children to buy slushies.
The new Sen. Howard said she believes the death penalty costs too much to prosecute and defend and that the justice system is flawed to the point that an innocent person could be executed.
“In my mind, I don't think a civil society encourages the death penalty,” Howard said. “I think Nebraska can do better.”
Another shift has come from Nebraska's Sand Hills, a bastion of conservatism. Freshman Sen. Al Davis, a Hyannis rancher, is an opponent of the death penalty, unlike the former representative of District 49, Deb Fischer, now a U.S. senator.
Davis, a Catholic, said he adheres to his church's belief that the death penalty is wrong in a civilized society.
He said he's also concerned that an innocent person could be executed, citing the recent exoneration via new DNA tests of evidence of several people convicted of murder.
Davis said he was compelled by testimony earlier this year by the sister of murder victim James Thimm. Miriam Thimm Kelle told the Legislature's Judiciary Committee that the 34-year effort to execute her brother's killer, cult leader Ryan, had only prolonged her family's suffering.
Said Davis, “I think it's time we looked at something else.”
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