Fairness is a moving target

“Our conclusion is that this [Nebraska’s death penalty system] is a classic example of disparate treatment, that is, people are being treated differently on the basis of factors that have nothing whatever to do with their culpability but rather on the socioeconomic status of the victim that they have killed. It’s a system-wide influence that exists in both the major urban counties and it exists in greater Nebraska.” Prof. David Baldus, Joseph B. Tye Professor of Law, U. of Iowa College of Law. Testimony before the Nebraska Judiciary Committee, October 17, 2001

The death penalty is a lottery of race, place, and resources

Where a crime occurs can play as big a role as the nature of the crime in determining who will live and who will die. Similar murders might get 40 years in one county and death in the next county over. Considerations such as financial resources available in a jurisdiction, the views of constituents and the local political climate, and the prosecutor’s own views can affect the likelihood a defendant will face the death penalty. These factors can result in disparities in how often, and for what crimes, the death penalty is sought within a state.

• “Who gets life and who gets death in Nebraska in death penalty cases depends more on geography, class, race, and the discretion of prosecutors than on the heinousness of the crime.” “The Disposition of Nebraska Capital & Non-Capital Homicide Cases (1973-1999): A Legal & Empirical Analysis,” 2001.
• Defendants in death penalty cases in Nebraska whose victims are wealthy are 5.6 times more likely to be sentenced to death than are those whose victims are poor.[1]

In the U.S., over half of all murder victims are African American, yet less than 15% of the people executed since 1976 were sentenced to death for the murder of an African American.[2]

• Race exacerbates the risk of executing an innocent person. Eyewitness identification, which is the leading cause of wrongful conviction, is even less reliable when the witness is identifying someone of a different race. Of the 156 death row exonerees in the US since 1973, 60% are black or Latino.[3]

Nebraska can’t get it right and we all pay for the mistakes

“Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, and, despite the effort of the states and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.”– U.S. Supreme Court Justice Harry A. Blackmun, February 22, 1994

In Nebraska, the overall error rate in death penalty cases is 68 percent, meaning that courts have found serious, reversible error in nearly 7 of every 10 death penalty cases.[4]

• Between 1973 and 2007, there were approximately 1,450 murders in Nebraska. Of these, some 235 were “death-penalty eligible”, and prosecutors sought the death penalty in 103 cases. Of those 103 cases, 31 resulted in a death sentence. Of these, 13 sentences were commuted, 10 are on appeal, 4 died in prison, 1 was freed, and 3 were executed.[5] A government program with a failure rate this high is not worth the time or the tax money. Nebraska can do better.

Prosecutorial discretion makes the death penalty more arbitrary and unfair

State prosecutors have sole discretion whether to pursue the death penalty against a defendant. The financial resources available in a jurisdiction, the views of constituents and the local political climate, and the prosecutor’s own views can affect the likelihood a defendant will face the death penalty. These factors can result in disparities in how often, and for what crimes, the death penalty is sought.

“I can…tell you that most prosecutors across our state feel torn about the [death penalty]…Most of us agree, though, that the death penalty is not working in Nebraska and our state would be better off to replace the current penalties with secure life-without-parole sentences.” Brent M. Bloom, former chief deputy Douglas County Prosecutor. Testimony to the Nebraska Judiciary Committee, January 29, 2009

We all expect justice to be blind. Otherwise it’s not justice at all. Yet geography, poverty, and race continue to determine who lives and who dies. When the public sees this level of disparity in the death penalty, it compromises the integrity of the entire criminal justice system, sending a message that some lives are more valuable than others. Now is the time for Nebraska to demand more from its criminal justice system

1. “The Disposition of Nebraska Capital & Non-Capital Homicide Cases (1973-1999): A Legal & Empirical Analysis,” 2001; http://www.ncc.state.ne.us/documents/other/homicide.htm.  See also Jerry Soucie, Nebraska Capital Cases, Nebraska Commission on Public Advocacy, March 15, 2007.
2. Homicide victim figures from the FBI Uniform Crime Report for 2013, the most recent year for which statistics are available. Execution figures from The Death Penalty Information Center.
3. “Exonerations by Race,” Death Penalty Information Center, 2015
4. “The Disposition of Nebraska Capital & Non-Capital Homicide Cases (1973-1999): A Legal & Empirical Analysis,” 2001; http://www.ncc.state.ne.us/documents/other/homicide.htm.  See also Jerry Soucie, Nebraska Capital Cases, Nebraska Commission on PublicAdvocacy, March 15, 2007.
5. Ibid.