On May 29, just two days after Nebraska became the nineteenth state to abolish the death penalty, Nebraska Governor Pete Ricketts announced that he still plans to execute Nebraska’s ten death row inmates. Death penalty foes say he can’t do this; the Governor says he can.
While much has been made of Nebraska’s becoming the first conservative state to repeal the death penalty in over forty years, Nebraska’s repeal is remarkable for another reason, as the battle brewing in Nebraska suggests. For the first time in nearly fifty years, a state legislature repealed its death penalty not just for future crimes but also retroactively, that is, for those currently on death row. Nebraska’s repeal explicitly prohibits the very action that Governor Ricketts plans to take—the execution of those on Nebraska’s death row.
Over the past eight years, five other states have repealed the death penalty. None of them did so retroactively. In three of those states, New Jersey, Illinois, and Maryland, it took a governor’s commutation order to clear death row. In New Mexico and Connecticut, death row prisoners were not so lucky; a total of thirteen men remain on death row in those states after repeal. Pending legislation in Colorado, Delaware, Kansas, New Hampshire, and Washington is also not retroactive. When these states inevitably repeal the death penalty, they will join an ever-growing list of states that have repealed the death penalty while retaining death row intact. Abolition for most, but not all—not for the forty people on death row in these states.
Many will say this is at it should be. Some family members of murder victims, such as the parents of slain University of Delaware student, Lindsey Bonistall, argue that retroactive repeal unsettles their expectations of retribution. “[D]on't let the judicial process, our tragedy, trauma and pain,” they wrote to legislators, “be in vain.”
Some lawyers—including Nebraska’s attorney general—argue that retroactive repeal unconstitutionally infringes the courts’ power to render “final” judgments and the executive’s power to commute sentences. A slew of old, poorly-reasoned state court cases certainly support this cramped view of the separation of powers.
And some advocates argue that, by repealing the death penalty going forward but not retroactively, the death penalty abolition movement merely parallels the movement to end another infamous American institution: slavery. In the late eighteenth century, the Pennsylvania Abolition Society, the first organization dedicated to securing slavery’s end, supported laws that would end slavery going forward but not retroactively. “We dare not flatter ourselves with anything more than a very gradual work [of national emancipation],” the Society said in 1790, for “long habits die hard and strong interests are not overcome in an instant.”
All of these arguments against retroactivity have merit, but they should not win the day.
Family members of victims must understand that there is no record of a death row prisoner ever being executed after repeal of the death penalty. Ever. Failure to repeal the death penalty retroactively is a farce; history shows that those remaining on death row will probably never be executed, so why not do away with death row completely and eliminate the trauma that families will be forced to endure as they sit through literally endless appeals?
Lawyers must understand that the failure to repeal the death penalty retroactively is the height of arbitrariness. It is nonsensical to say that a person who murders the day before repeal can be sentenced to death, while a person who just so happens to commit an identical murder the day after repeal cannot be sentenced to death. There simply is no difference between the two murderers. If the death penalty is too expensive, too inhumane, too discriminatory, too prone to human error, too out of step with international norms, or too unfair to victims’ families today, then it was surely all of those same things yesterday. Recent statements by the Supreme Court and lower courts strongly support legislators’ elimination of arbitrary disparities like these.
And advocates must understand that, while the movement to abolish slavery began as a gradual enterprise, it yielded to a more radical movement demanding a complete end to slavery. Nebraska’s retroactive repeal of the death penalty on Wednesday marks the beginning of a more radical movement to abolish the death penalty.
The next decade will undoubtedly see more states boarding the abolition train—states like California, with over 700 people on death row. Hopefully, they, like Nebraska, will take their death rows with them. Abolition for all.