As much as I’ve wanted to see the much-rumored left-libertarian convergence on criminal justice reform bear fruit, I’ve remained skeptical that sufficient numbers of conservatives would be willing to take on prosecutors, the prison-industrial complex, and the prospect of primary challengers accusing them of softness of crime. But last week, the Nebraska legislature surprised many observers, including me, by becoming the first conservative-leaning state in over four decades to abolish capital punishment, in all likelihood over the veto of Governor Pete Ricketts.
The coalition responsible for this measure brought together legislators with widely divergent reasons for supporting abolition. It included liberals who oppose the death penalty on principle and as a practice with racially disparate impacts. It also included small-government conservatives such as Nebraska Senator Laure Ebke, who asked, “If government can’t be trusted to manage our health care … then why should it be trusted to carry out the irrevocable sentence of death?” But other considerations brought a wider range of legislators into the abolitionist camp:
- A claim, advanced by religious conservatives in the legislature, that self-identifying as pro-life compels opposition to the death penalty
- Concerns about the costs of the legal and penal apparatus of capital punishment, compared to life without parole.
- Shortages of drugs used for lethal injection
- The infrequency with which the death penalty has been carried out in the state (no one has been executed in Nebraska since 1997)
Nebraska is not alone when it comes to legislative activity seeking to abolish or restrict capital punishment. According to the Death Penalty Information Center, since January abolitionist legislation has been introduced in 13 of the 31 states other than Nebraska that currently have the death penalty. My initial expectation was that these proposals would be quixotic efforts put forth by lone-wolf legislators. But abolitionist proposals are often accompanied by other measures designed to limit, if not end, capital punishment. We can group states as follows:
- Abolition, and no other bills: Delaware, Kansas, Montana, Pennsylvania, Washington
- Abolition, and separate bills limiting the death penalty or seeking further study of issues surrounding the death penalty: Kentucky, Missouri, Ohio, South Dakota
- Abolition, and separate bills seeking to preserve or expand the death penalty: Arkansas, Indiana, Wyoming
- Abolition, and separate bills on both sides: Texas
Optimistic abolitionists would label this activity a sign of genuine progress, in that bills have been offered in a number of staunchly conservative states. More skeptical observers would note the greater success of proposals protecting the death penalty, through either expanding the number of offenses qualifying for it, protecting suppliers of drugs used for lethal injections, or authorizing the use of alternatives to lethal injection. Abolitionist bills, with the exception of Arkansas’, have either failed to see action or have been voted down in committee. But whether you see the glass as half-empty or half-full, it’s hard to deny that the glass has gained water.