Judicial killing: American-style

from The Washington Post....

Voters in California and Nebraska will decide
whether they want to keep the death penalty

California's proposal could affect a quarter of all death-row inmates nationwide.

By MARK BERMAN | 3:26PM EST - Monday, November 07, 2016

The execution chamber in Huntsville Penitentiary, Texas. — Photograph: Pat Sullivan/Associated Press.

WHEN voters head to the polls in California and Nebraska on Election Day, they will get to weigh in on whether their states should abolish the death penalty.

These two initiatives, along with another ballot measure in Oklahoma, represent a sort of microcosm of where things stand nationwide on the death penalty. Most states still have the practice on the books, even if a dwindling number of states actually seek to carry out executions.

In places that do still have the death penalty, some have been unable to carry out executions for years or have been facing legal or logistical challenges. The death penalty initiatives on Tuesday are being considered while capital punishment has been utilized less and has seen its popularity decline nationwide, with a recent survey showing that fewer than half of Americans backed the practice.

Competing initiatives in California

There are actually two death penalty proposals in California, and they are diametrically opposed: One would eliminate capital punishment, while the other would effectively speed up the death-penalty process.

California has not executed an inmate since 2006 because of concerns about its lethal injection protocols, and executions there have been rare in the modern era. But the state is home to 1 in 4 death-row inmates nationwide, with a bigger population of condemned inmates than the next two states (Texas and Florida) combined, so a decision to eliminate the death penalty would have a dramatic impact.

In many cases, California's death-row inmates have been there for decades. Others have been sentenced since the state's last execution, with more inmates sentenced to death in that span than sit on the death rows of all but four other states.

California is also home to Riverside County, which, last year, handed down eight death sentences, more than any other jurisdiction, according to a report from the Death Penalty Information Center.

Michael Hestrin, the Riverside County district attorney, called the state's current death penalty system “broken,” and he said that he thinks juries may factor that in when they deliberate in a case.

“The public knows these are not being carried out,” he said in an interview. “What has happened is we've evolved to have a symbolic death penalty, where the jury is maybe handing down a death sentence to express their outrage at the crime, but sort of — and again, I'm speculating — but perhaps knowing that the sentence isn't going to be carried out.”

The lethal injection facility at San Quentin State Prison in California. — Photograph: Eric Risberg/Associated Press.

Hestrin said he supports Proposition 66, the measure that would speed the pace of executions, saying that it could bring “reforms to a broken system.” Among other things, that proposition would mandate earlier appointment of attorneys to handle appeals for death-row inmates and quicken the deadlines for when appeals have to be filed and decided. The other proposal, Proposition 62, would scrap the death penalty and replace it with life in prison.

It is not entirely clear what will happen with these measures. A USC Dornsife-Los Angeles Times poll last month found that while there was a little more support for the proposed elimination of the death penalty, neither proposal had majority support. The proposition eliminating the death penalty had 43 percent in favor against 46 percent opposed, while the other proposal had 35 percent supporting it and 43 percent opposed.

In a Field Poll also conducted last month, the abolition of the death penalty had majority support (51 percent versus 45 percent), narrowly leading the proposal to revamp death penalty procedures (48 percent versus 42 percent).

If both proposals pass, the initiative with more votes wins out.

Nebraska's death penalty bill turns to the voters

Nebraska voters are going to decide an issue that lawmakers battled over last year.

The state's legislature voted to abandon the death penalty despite Governor Pete Ricketts's vow to veto the measure. Ricketts, a Republican in his first term, followed through on his pledge and vetoed the bill, but lawmakers overrode his veto and, by the narrowest margin possible, again voted to abolish the death penalty.

The fight did not end there, though. Supporters of the death penalty immediately said they would keep fighting the bill and pledged to get it onto the November 2016 ballot, following a campaign that included a sizable donation from Ricketts, who said he was “appalled” by the bill and called it “cruel” to victims of the people sentenced to death.

Nebraska Governor Pete Ricketts. — Photograph: Nati Harnik/Associated Press.

Lawmakers who supported getting rid of the death penalty said they did so for religious reasons or because of people who were wrongly convicted. In other cases, they painted it as an example of government waste. Nebraska has not executed an inmate since 1997, and it has executed three inmates in the past four decades. There are 10 inmates on the state's death row, all of whom would receive life sentences if the death penalty is abolished on Tuesday.

The referendum asks voters whether they want to “retain” or “repeal”, though the wording is somewhat confusing. A vote to retain would actually eliminate the death penalty by retaining the bill passed by lawmakers last year; a vote to repeal would keep the death penalty available by jettisoning the same bill.

Oklahoma could open up more execution methods

This state has recently taken on a central role in the country's debate over the death penalty, so it is best to put the proposal there in a bit of context.

Officials in Oklahoma bungled an execution in 2014, drawing intense national scrutiny as well as criticism from President Obama after the inmate involved writhed and grimaced. The state then halted executions and launched an investigation into what happened.

After that investigation, the state resumed executions in January 2015 — only for authorities to admit that they actually used the wrong drug in that lethal injection and, months later, abruptly called off another execution because they almost used the wrong drug there. A grand jury this year assailed state officials for their behavior in carrying out executions, and three prominent officials have stepped down.

In between all of this, the Supreme Court took up a challenge to Oklahoma's lethal injection procedure, one that largely focused on the state's use of the sedative midazolam. The Supreme Court upheld Oklahoma's use of the sedative, though until that opinion came down, the state again put executions on hold.

The execution chamber at the Oklahoma State Penitentiary in McAlester, Oklahoma. — Photograph: Sue Ogrocki/Associated Press.

Before the Supreme Court ruled, Oklahoma Governor Mary Fallin (Republican) signed a law giving the state another backup method of execution: nitrogen gas, which does not seem to have been used before by a state.

This brings us to the new proposal. The measure up for consideration on Tuesday would add a new section to Oklahoma's constitution saying that the death penalty cannot be considered cruel and unusual punishment. It would also offer lawmakers some wiggle room in looking for other methods of execution, something with which they have some experience after their seemingly novel decision to adopt nitrogen gas as an option.

The proposal in Oklahoma says that the legislature can “designate any method of execution not prohibited by the United States Constitution.” It also says that if a method of execution is struck down, death sentences will not be reduced (which is somewhat similar to an issue unsettling Florida's death penalty system right now). Instead, a person's death sentence would remain in place until the state can carry it out another way.

Shrinking — but still sizable — support nationwide

Capital punishment has not been a major issue during the presidential campaign, although it has cropped up at various points. Donald Trump, the Republican nominee, has called for the death penalty for the since-exonerated Central Park Five and said he would expand the use of the death penalty in certain cases.

Hillary Clinton, his opponent, was challenged on the issue during the Democratic primary, during which her support for the death penalty put her at odds with many liberals. (This issue returned to the news recently when it emerged in hacked emails that Clinton appeared to have been warned that she would be asked about the issue during a CNN town hall debate.)

A Pew Research Center survey released in September found that support dropped just below the 50 percent mark, though a Gallup poll released a few weeks later found that support still remained at 60 percent. Overall, though, support for the death penalty has fallen since peaking in the mid-1990s.

The death penalty itself has been utilized far less often recently, and in recent years, the number of executions and death sentences have both declined. This year, the country has executed 17 inmates and is on pace to have fewer executions than during any year in a quarter-century.

• Mark Berman covers national news for The Washington Post and anchors Post Nation, a destination for breaking news and stories from around the country.

__________________________________________________________________________