As one man said, reaching to sign the petition to “let the people vote” on reimposing the death penalty in Nebraska after the legislature had voted to abolish it, “I’d push the button myself.” Whatever he was thinking—or not thinking—executions do not make society safer or deter others from killing. Capital punishment rests on the premises that justice and punishment are synonymous, that violence is the necessary answer to violence, that retribution is the only honest response to loss, and that evil may be defined and surgically excised from society.
Alternatives to the death penalty go back thousands of years in the place we now call Nebraska. Many Siouan peoples held that, although retribution was allowable, the most noble and positive response to murder was for the murder victim’s family to adopt the murderer in place of the one who had been killed. (Deloria) Nor did European judiciary traditions always include executions—there have been more extra-legal lynchings in Nebraska since the advent of European settlers—about 50—than there have been legal executions—37—by counties or the state. (From the Journal Star, “Jim McKee: Lancaster County’s only lynching” and from Wikipedia’s entry “Capital punishment in Nebraska.”
In 1972 the US Supreme Court had thrown out all state death penalty statues as unconstitutional. Nebraska reestablished its death penalty in 1976, when the Supreme Court allowed new sentencing principles intended (unsuccessfully, as it turned out) to reduce the arbitrariness of the system. The legislature, led by Nebraska’s then only black state senator, Ernie Chambers of Omaha, abolished the death penalty again in 1979, but Gov. Charles Thone vetoed the bill and the Unicameral was unable to override the veto. By 1982, a group of people associated with the Nebraska chapter of the American Civil Liberties Association had formed a group called Nebraskans Against the Death Penalty. I joined almost as a matter of course. The early 1980s may have been Morning in America, but the intractable problems of earlier decades still seemed, well, intractable. The death penalty was only one law, but it achieved so little with such conspicuous brutality that it seemed vulnerable to defeat in the legislature. Naively, I imagined that a little lobbying and education was all that was needed for Nebraska to stop killing its citizens.
Every legislative session Senator Chambers introduced another bill to repeal the death penalty, but after 1979, the legislature no longer seemed interested. I have lost count of how many judiciary committee hearings I attended. I can’t tell you what year it was, but I do remember one of the bored and somnolent senators waking up, sure he had misheard me, when I said that Canada’s murder rate actually dropped after 1976, when the country abolished the death penalty. Nebraska, like most polities, has a number of categories for homicides, ranging from accidental and completely nonculpable to premeditated and fully culpable first-degree murder. Few homicides in Nebraska are tried as capital cases, not all of those result in death penalties, and many death sentences are vacated on appeal—and there are several mandatory appeals. The procedures are, I believe, good faith attempts to make fair a system that is inherently unfair and beset by human error. How can we ever manage to keep the innocent from death row and to determine fairly and execute only the “worst of the worst”? Few human systems are failsafe, and the American judicial system is tilted against the poor and the nonwhite. But there were more murders and more death sentences. In June of 1991, the state Board of Pardons (governor, attorney general, secretary of state) held a full hearing for Wili Otey, a black man who had been convicted of murdering Jane McManus, a young white woman from Omaha. The Pardons Board refused a commutation, and the state supreme court issued an execution warrant for July 2.
My friend Jean called that morning. Wili Otey’s mother and brother were staying with her. She wanted to hold a vigil in front of the governor’s mansion to pressure the Pardons Board to reconsider. We ended up with 30 or 40 people, standing in 100-degree heat under the pin oaks in front of the governor’s mansion. John Ways, a black police officer, brought a cooler of sandwiches. I had a transistor radio so we could listen for any news of the stay that had been filed with the Eighth US Circuit Court of Appeals. Every hour the news led with the same story. President George H. W. Bush had nominated Clarence Thomas for the Supreme Court seat vacated by Thurgood Marshall, the great NAACP attorney who had fought all his life against lynchings, legal or otherwise. Every hour the station played the same clip of the president saying that he had nominated Thomas not because he was black but because he was the right man for the job. “Right—and Wili’s death sentence had nothing to do with his being black and having a white victim, either.” About six o’clock in the evening (the execution warrant was valid until midnight), an ABC reporter came and told us the stay had been granted. I took the cooler of sandwiches over to Jean’s house. Wili’s family had not yet heard that the stay had come. I told his mother and brother that Wili would not be killed that night. Watching Wili’s family suffer was unbearable. I would never give up on abolishing the death penalty.
By the time Nebraska succeeded in executing Wili Otey in September of 1994, I was teaching at the University of Calgary as a Fulbright professor. On my office door, headed in big red letters “WHY I AM IN CALGARY,” I pinned a letter from a friend. He described the raucous “Fry Wili” party death penalty proponents had staged outside the prison, lobbing firecrackers into the crowd of anti-death penalty protestors vigiling on the other side of a makeshift fence in the prison parking lot. It was pretty clear why the “NAACP Opposes Legalized Lynching” slogan applied in Nebraska. The Amnesty International faculty adviser taught in my department in Calgary, and his members, walking past my door, decided to adopt Nebraska’s death row inmates.
John Joubert, the only white man to be executed in Nebraska since Charlie Starkweather, was electrocuted in July 1996. Again, we were in Canada, but again I heard of the “Jolt Joubert” party proponents had staged. Bob Williams, another black man who had killed white victims, was the third to die, in December 1997. This time the execution was held in the morning to deter the partiers altogether, and both proponents and opponents kept a civil presence outside the prison, with representatives of the media shuttling back and forth. I was the media contact for Nebraskans Against the Death Penalty. In January of 2001, Nebraska was within 40 hours of executing Randy Reeves, an Omaha (Native American) man of my own age who had been convicted of murdering his white adopted cousin Janet Mesner and her friend Vickie Lamm. That execution, too, would be stayed, and Randy would be resentenced just before 9/11. That is the closest Nebraska has come to an execution since then.
The struggle to end the death penalty never stopped. In 2013, the legislature once again had the votes for abolition, though not enough to override a veto or a filibuster. The election of 2014 brought in 18 new legislators when the Unicameral convened in January of 2015, most of whom styled themselves as conservatives. I was afraid that it would take a whole two-year session to educate them about the death penalty—and as soon as they really understood why it is a bad policy, there would be another set of newbies with only the most casual opinions on the subject. I was wrong. The new senators were quick learners, and even some of the more veteran members were startled out of their complacent sense that executions were simply the way things have always been done. The venerable Sen. Ernie Chambers introduced the bill and received the undivided support of all the liberal and moderate members of the body. Two particularly effective groups of abolitionists were murder victim’s families who opposed executions and men who had been exonerated and removed from death rows after wrongful convictions. I spoke to one young woman who had lost five extended family members to murder. All the cases remain unsolved. “My family doesn’t support the death penalty,” she said. “But I would like to at least know who killed my cousins.” Many people like her wanted the simple resolution of knowing what happened—and had no desire to inflict violence and loss on any other family through an execution.
And then there is the matter of innocence. Curtis McCarty spent 19 years on death row in Oklahoma, convicted of the murder of a young woman. Like many of her friends, he had gladly given bodily samples to police, hoping to help solve the puzzle of her murder. But the police, frustrated at being unable to solve the case, decided that they did not like his attitude when they came back to question him some more. An obliging police chemist, Joyce Gilchrist, whited out the sentence in her original report saying that he was probably not a match to the crime scene evidence—and retyped the invented conclusion that he was a match. Only when the Innocence Project took on his case was he eventually freed. Ray Krohn, the 100th person to be exonerated from an American death row, had been convicted on “junk science” bite mark evidence and was freed by DNA testing. And then there was the matter of the Beatrice Six. Threatening someone with death can lead to false confessions, especially if the person pressured possesses only a limited sense of reality. The Beatrice Six were accused of the rape and murder of an elderly widow, Helen Wilson. All but one confessed. None, it turned out later, had had any connection with the crime. They were “suspicious” only because they were poor and vulnerable, exactly the people who can be coerced to make a false confession. (Ironically, Joyce Gilchrist, the same chemist whose false evidence had convicted Curtis McCarty, had misidentified evidence from the real killer in the Beatrice case and allowed him to die in jail in Oklahoma.) Senators could not help but be moved at discovering the ease with which the truly innocent can be convicted and sentenced to death or induced to give false confessions when threatened with their own death.
LB268, the 2015 version of Senator Chambers’ bill to abolish the death penalty—ironically, as he pointed out, the same number as the bill that had reestablished the death penalty back in 1976—passed the legislature. Its supporters were able to break two filibusters over a course of three days of debate. When Nebraska’s governor vetoed the death penalty bill, his veto message showed he had not really grasped the arguments against it. His claim that the case of a man whose life sentence had been commuted by the Pardons Board proved that Nebraska did not have the capacity to impose the sentence of life without parole conflated the role of the Pardons Board, on which he serves, and the Parole Board, to which he appoints the members. It is important that he know the difference. He argued that the death of two inmates in a recent prison riot showed the need for a death penalty to provide a sanction for inmates who kill, though the riots occurred when the death penalty was in place, and no one has ever been indicted or even accused of the murders. Sen. Sue Crawford pointed out that prison murder rates are in fact four times higher in states with the death penalty than in those without. In fact, all of the specific instances that the governor cited in his veto message rested on false facts and spurious inferences—and were particularly given to blaming men of color.
I was stunned, actually, by the breaking of the filibusters, the passage of the bill, and the override of the veto. The most recent polls had shown a majority of the population actually favored alternatives to the death penalty, but the habit of demagoguing the issue was so deeply entrenched and had been so vividly on display during the debates, I really could hardly believe that the bill had been passed and that the veto had been overridden. After all, the arguments repeal proponents were putting forward were the same as they had been in the beginning—maybe just in a different order. The death penalty is implicated in both false convictions and false confessions; it is a travesty rather than a boon for victims’ families; the prisons, despite their flaws, can keep us safe; capital punishment is not consistent with Christianity or with the practices of the other western democracies; it is no more effective than other sentences in deterring murder, and states without the death penalty have lower murder rates than states that retain it. We hadn’t even really looked at how skewed it is against the poor and against defendants of color, especially those with white victims. I’d watched legislators come and go over the years and vote down all those reasonable, factual arguments.
But our governor had other ideas. He and Sen. Beau McCoy, the Unicameral leader of the pro-death forces, immediately launched a petition drive, to repeal repeal with a plebiscite. All of the patient, thorough education of the senators was to be swept away. I believe that Nebraskans, whatever their beliefs, are as fair minded as the Unicameral, but it is a lot easier to educate 49 people than a whole state in the intricacies of capital punishment in theory and practice. And how do you get the attention of people who already think they know what they need to know about the death penalty? It’s far too easy to demagogue a plebiscite. And that’s why I found myself in a turquoise T-shirt, passing out “Decline to Sign” fliers opposite the Native American woman a few years younger than me, who was circulating a petition in front of the Lancaster County Department of Motor Vehicles. I think she was the same woman my friend Darby encountered petitioning in front of the library downtown. “Normally, I’d sign to put something on the ballot, but I just can’t sign this,” Darby had told her.
“That’s OK. I get paid by the hour.”
Rose was not, however, glad to see me. She hollered at me for offering leaflets to people as they entered the DMV. “That’s the deal we have. We’re not supposed to bother them till they’ve done their business.”
“Well, I don’t know. That’s not what I was told.” In fact, the person who had briefed me about what I was to do had said to be careful because petitioners might falsely tell me I was not allowed to do the work, or even that they would call the police on me. “Maybe there is a difference between asking someone to stop and sign something or just to take a flyer.”
“That’s just like you people. Always breaking the rules.”
An alarmingly large number of people signed Rose’s petition, and many who didn’t said that they had already signed. Rose kept sniping at me. “It’s you people who keep it from working. Why are you wasting money on this? Why can’t you go help kids or something?”
“Actually, I’m a volunteer. And I totally agree that it makes more sense to spend time and money on kids than on having a death penalty.”
“Why don’t you follow the rules and stop bothering people who are coming in?”
“Why are you so eager to bring back the death penalty anyway? It doesn’t work.”
“Well, it would work if it wasn’t for you people. I admit there’s problems, but you need to have it and the legislature should just fix the problems, not get rid of it.”
“So how would you fix the problems, then?”
“That’s for the legislature to figure out.”
“Maybe when they tried they realized it couldn’t be fixed, and so they got rid of it.”
“No. We need it. It’s their responsibility to make it work.”
“Anyway, I don’t understand why you would want the death penalty back.”
“Well, what about those ones that get out and then kill again and again?”
“That doesn’t really happen often. Murder is one of the crimes people are least likely to repeat.”
“Then why do I hear about it so often?”
“Because it is rare. Just like you hear stories about winning the lottery, but not stories about all the people that lost.”
“We just need it to get rid of the fucking lunatics!”
“Which fucking lunatics?”
“The ones that kill people!”
“But if they’re really lunatics, then they’d be not guilty by reason of insanity, so the lunatics wouldn’t be the ones who were executed, anyway.
“Ah … I need a break.”
We met again, at the same place, four days later. Rose was almost apologetic. She’d just made it through four days of quitting smoking, she said, and was feeling a lot calmer. We talked quietly. “I’m a teacher, OK?” I explained. “I’ve been working on this issue for more than thirty years. And it’s as if I finally got to teach a class about it, and the legislature was that class. We brought in speakers and tons of information and worked with each senator to show them the arguments on the parts of the issue that they most cared about. The legislature worked really hard to understand, and then they aced the exam. And then the principal said everyone in the school was going to take the test, whether they had studied or not, and whatever their score was would be the final score. I’d feel really cheated.”
“I can understand that. But what about that guy that shot all those people at that movie theater in Colorado? Don’t you think he should get the death penalty?”
“No. He obviously has some pretty severe mental problems. Killing him won’t bring anyone back or deter any further nut cases. Mass murderers like that usually end up killing themselves, too, like that Von Maur shooter in Omaha. If we really want to stop mass killings, we ought to make it harder to get guns.”
“And easier to get mental health help! I know it’s really hard to get anything in Lincoln, and now they’re cutting back that Region V, too. And the Crisis Center.”
It turned out we both had kids who had gone through troubled periods in their teens and had had excellent mental health treatment in Lincoln. They had both turned into pretty neat adults. We wished that those programs were available to more kids. I told Rose that I had volunteered at the prisons for many years and had developed friends who had committed murders, even some who had been on death row. I told her about one young man who had killed his mother’s abusive boyfriend and been threatened with the death penalty to take a plea bargain that sentenced him to 75–80 years. A frightened 21-year-old who functioned on most issues on the social and intellectual level of an eight-year-old. He had no chance in court to talk about defending his mom or about his own mental issues. He’d been a ward of the state, identified as developmentally delayed, and placed in a succession of group and foster homes. Once he turned 19, he was no longer eligible for benefits and was turned back over to his mom. She tried to get him into Job Corps or even to get a job at McDonald’s, but it was just too confusing for him. She stayed with her abusive partner so she’d have a home for her son. “That could’ve happened to me,” Rose said. “I had to get restraining orders. And once my kid hit him over the head with a frying pan and knocked him out.” We were both silent for a while, looking back.
“Do you believe in God?” Rose asked.
“I believe in God, so I believe in the Devil. But I don’t really know which way the death penalty is.”
“I like the idea of the Trickster. That we strive for balance, but we need to get stirred up, too. We can’t separate good from evil. They are both in all of us. Nobody is just the worst thing they ever did.”
All the time we talked, people came and went from the DMV. Rose asked them to sign the petition, and I asked them not to. Her pitch focused more, now, on the rights of the people to choose whether or not our state should have capital punishment.
“You’re damn right we got a right to choose. That’s what democracy is. You can’t trust those crooks in the legislature,” said a burly man in a “Love to Hunt” T-shirt.
“Do you have a responsibility to educate yourself as well as a right to vote?”
“Huh? Oh, I’m educated about the death penalty. I read the Bible.”
The more Rose stressed the right to vote, the more the petition signers swaggered at their power to get back at “the government,” to retake their democracy. But the swagger at hitting back at government certainly extended to a swagger at getting rid of the “fucking lunatics,” as Rose had expressed it. But signing the petition was not exactly getting back at “government,” since the petition drive was primarily funded by $200,000 from the governor himself, with another $100,000 from his father. The paradox did not seem to unsettle the signers, and even though they looked to be, for the most part, middle class or working class, none seemed to find it unseemly that the governor should pay for signatures to buy himself a vote he hoped would give him at least the legal authority to order that people be put to death.
As I got ready to go, Rose told me, “You’ve given me a lot to think about, but even if I was adamantly opposed to the death penalty, I’d take this job, because I’ve been out of work for a year and I have to feed my family.” As a circulator, Rose would have one more day of work. The campaign had collected enough signatures to get the measure on the ballot and to suspend the new repeal law. The resulting plebiscite would vote the death penalty back into Nebraska. What kind of a democracy is it when a rich governor can use his own money to pay poor and vulnerable citizens like Rose to collect signatures for the eventual purpose of putting to death other poor and vulnerable, and abused and abusing, citizens? Perhaps this man is sincere in his beliefs, but he is not secure in his facts. Bryan Stevenson, a brilliant lawyer who has freed innocent men from death rows, has written about the role of a governor in the case of Dylann Roof, convicted of murdering nine people in a black Charleston church. This is a telling quote from the article:
If I were the governor of South Carolina, I’d say: “We’re going to abolish the death penalty, because we have a history of lynching and terror that has demonized and burdened people of color in this state since we’ve become a state. I’m not gonna end the death penalty because there are innocent people on death row, I’m not gonna end the death penalty because I think it’s unreliable or it’s too expensive, I’m gonna end it because in South Carolina, we have a history of bias and terror and violence and segregation, and the death penalty has been a tool for sustaining that, and I’m gonna say we’re not gonna have that.”
Despite what Nebraska’s governor has said about Nebraska’s righteousness in using the death penalty, if he were honest, he would speak the same way Stevenson’s hypothetical South Carolina governor would. Every specific person mentioned in his veto address is a man of color who grew up within a society of “bias and terror and violence and segregation,” accompanied by a fruitless search to find help for problems of mental anguish. Rose and I found our first point of agreement on children. Giving at-risk children the skills and resilience to persevere and succeed in life does far more to deter murder in our society than does any death penalty—as even law enforcement leaders agree. What if Nebraska’s rich governor supported really good schools for the little bitty kids who need them most? Rose would have been a lot happier—and done a lot more for society—if her temporary summer job had been as a paraeducator for those kids, not a petition circulator trying to get support for a measure that might, in the future, execute one of those kids who got stuck with “bias and terror and violence and segregation.”