Sonny's Corner: Debating the Death Penalty - Again, Part Four: Epilogue


Prairie Fire Newspaper went on hiatus after the publication of the September 2015 issue. It may return one of these days but until then we will continue to host all of our archived content for your reading pleasure. Many of the articles have held up well over the years. Please contact us if you have any questions, thoughts, or an interest in helping return Prairie Fire to production. We can also be found on Facebook and Twitter. Thank you to all our readers, contributors, and supporters - the quality of Prairie Fire was a reflection of how many people it touched (touches).

Sonny Foster"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.

By Fran Kaye

Senators vote 26-23 to abolish death penalty
Governor promises veto

Oh, wait. We never saw that headline. Twenty-one senators voted against cloture, so LB 543, 2013’s bill to abolish the death penalty, never came to a vote. It used to be that filibusters were for bills that the governor supported, so there was no veto backstop for opponents. This time the filibusterers already knew, from an early test vote, that the veto would hold. The bill had no chance of becoming law, so perhaps it was just the evidence that the Nebraska legislature was ready to abolish the death penalty that the filibusterers sought to suppress. Headlines like the hopeful one above would give momentum to the nationwide revulsion against state-ordered killing. Sen. Ernie Chambers himself called for the cloture vote, the first time he’d ever made such a call in his long career. There had been 11 hours of vigorous debate, though both sides acknowledged that they did not expect to change each other’s opinion. Abolitionists recapitulated the arguments that had been made at the judicial committee hearing—that the death penalty does not deter; that it will result in the execution of innocent persons; that the swifter it is, the more room for error; that executions are not needed to immobilize dangerous persons; that the death penalty is both racially biased and capricious and arbitrary; that its complexity and cost overtax both the judicial and the penal systems; and that evolving standards of decency all over the world are inexorably moving toward its abolition. Furthermore, as they pointed out, given Nebraska’s lethal injection protocol and its inability to acquire legal quantities of the drug sodium thiopental, no execution could be carried out in Nebraska in the foreseeable future. Why have a law that can never be executed?

Several senators, including Brad Ashford and Amanda McGill, judiciary committee members and leaders in moving LB 543, explained that they had once supported the death penalty but had been convinced by judiciary committee testimony that it simply could not work in the real world. Colby Coash referred to the op-ed piece he had published in the Lincoln Journal-Star that morning, explaining that he’d been a rowdy young college student cavorting in the penitentiary parking lot as Wili Otey was executed—and had come to be revolted by his own behavior and to oppose executions for the way they dehumanized the public as well as the murderer. Sen. Galen Hadley was particularly impressive in explaining that he’d been a lifelong supporter of the death penalty. He’d grown up six blocks from Charlie Starkweather’s house, had gone to school with Starkweather’s sister and had been at the prison for Starkweather’s execution. But he had changed. “I have come to the conclusion it doesn’t work.” Sens. John Murante and Bob Krist admitted almost reluctantly that the evils of the death penalty in practice in Nebraska outweighed their tentative support for it in principle. My own senator, Norm Wallman, and my longtime UNL colleague Bill Avery were succinct and powerful in their explanation of why they had come to oppose capital punishment. Al Davis, a rancher from Hyannis, passed around information on false convictions. Danielle Conrad, who had taken a whole course about the death penalty in law school, was indefatigable in listing all the facts and figures that showed the inequities of the death penalty and all the constitutional reasons for challenging death sentences.

And the incomparable Ernie Chambers, who has fought all these years to stop legalized lynching in Nebraska, led, focusing mostly on the arbitrary distinctions between those who receive death sentences and those who receive lesser penalties. The men on death row are not, as death penalty proponent Scott Lautenbaugh kept insisting, “the worst of the worst,” but rather those, among many equally culpable of heinous murders, unlucky enough to be sentenced to death. Lautenbaugh countered that the distinctions were not arbitrary—prosecutors had to account for the effect of blurry videos or unreliable witnesses. Sen. Chambers thanked Lautenbaugh for proving Chambers’ own point. Things like the quality of evidence and the personal convictions of judges do not correlate with either culpability or heinousness, yet they determine who goes to death row or to the execution chamber.

Sen. Beau McCoy, who was managing the filibuster, maintained with a straight face that he sincerely wanted to debate the question and let the legislature decide, even as he refused to answer Ashford’s direct question as to whether he intended to allow a vote on LB 543. Sen. Lydia Brasch, the only woman to argue for capital punishment, claimed that moving away from executions evidenced social decadence rather than evolving standards of decency. Sen. Pete Pirsch claimed studies from 2003 proved that the death penalty was a deterrent. He did not name the studies, but he probably was thinking especially of “Does Capital Punishment Have a Deterrent Effect?” by Hashem Dezhbakhsh, Paul Rubin and Johanna Shepherd, published in the “American Law and Economics Review” in 2003, which claimed that each execution deterred 18 murders. However, a comprehensive study by the Committee on Deterrence and the Death Penalty concluded, in a volume edited by Daniel S. Nagin and John V. Pepper and published by the National Research Council in 2012, that none of the deterrence studies could establish that the death penalty either deterred potential murderers or brutalized society and increased the murder rate. None of the studies considered the effects of other kinds of deterrence, none even considered how to rate potential murderers’ perceptions of the possible sanctions and all proceeded from “strong and unverifiable assumptions” (p. 4) about how deterrence might work. The committee concluded that such studies should not be used to shape public policy. Sen. Charlie Janssen voiced one of those strong assumptions, that all murderers are cowards and can be manipulated into confessions through fear of the death penalty, even though they were not actually deterred from murder.

Clearly, given the prevalence of murder-suicides—one has only to think of “the Von Maur shooter” and many grisly domestic homicides—not all murderers fear death. Some actually seek it. And, as Danielle Conrad pointed out, scaring people into confessing by threatening them with death is unconstitutional and rejected by the prosecutors who testified for the death penalty in front of the judiciary committee. Janssen also repeated, several times, his fear, as a boy the same age as Danny Joe Eberle and Christopher Walden, when they were kidnapped and murdered. The execution of the murderer, John Joubert, he said, made him feel a lot safer. Joubert’s arrest certainly made a lot of parents and kids in Nebraska feel safer. Perhaps his execution enhanced that feeling of safety, though Janssen would have been a grown man by then. And the feeling of safety at Joubert’s death was illusory. John Joubert was young himself, not much older than his victims. Like many murderers, he had had a terrible childhood. Unlike almost all serial sex killers, however, Joubert had begun to open up to his psychiatrist on death row. Had he not been executed, he most likely would have told us how the unfathomable can happen, what drives a young man to torture and kill boys only a few years younger than himself. Had we known what he knew, we might well have been able to piece together where and how to intervene to save other young men from becoming murderers, to save other boys from becoming victims. Instead, we electrocuted Joubert, and he had no alternative to taking his secrets to the grave.

This is the great flaw in Scott Lautenbaugh’s argument that those on death row “have forfeited their right to be part of the human race” or that “making a mistake” could be part of the explanation of a heinous murder. No one, not even John Joubert, who had apparently had vicious fantasies since childhood, wakes up in the morning and says, “Wow! Today is the day I’m going to commit a heinous murder.” The people who come to death row are poor, disproportionately minorities and disproportionately abused as children. They are there not because they made “a” mistake but because of a whole long series of mistakes and abuses, starting generations before they were born and often arising from the violence that was slavery, the violence of taking the continent away from native peoples and the ongoing violence against women and children. When Norma Fleisher went on her one-woman death penalty caravan across Nebraska, someone sent her a T-shirt. The front reads “I have a brother on death row.” The back rejoins, “And so do you.” We are all victimized by having a death penalty. Brad Ashford has successfully passed bills this year to address the mental health needs of Nebraska’s children and to pull them out of adult courts and prisons and put them in juvenile institutions that focus on healing. By passing these bills, we demonstrate that we have been complicit in punishing kids for their reactions to abuse and to the violence around them. We have helped create the “monsters” who are now on death row. The idea that we can separate the sheep from the goats with a death row comprised of “the worst of the worst” only works for the fluffy lambs who can parade their essential innocence and humanity against the irrevocable blackness of those awaiting execution. Gloating about being more human than someone else is a measure of the failure of our own humanity—just as the death penalty itself is such an admission of failure.

2014 will be a new legislative session. Ernie Chambers and the other strategists will decide whether to introduce a new death penalty abolition bill or to reboot LB 543, since it never actually came to a vote. Perhaps a few more senators will conclude that the death penalty simply does not work. Perhaps the legislature will actually get a chance to vote to abolish the death penalty. Perhaps it will override a veto. If not, there is 2015, and another long session, with new senators, who will learn from judiciary committee hearings how futile and barbaric the death penalty actually is, despite what they might have casually thought before. There will be a different governor, who may not be so ready to veto an abolition bill. And if not, there is 2016. Also 2017, 2018 and 2019. And 2020. And … Nebraska will not have another execution, and eventually it will fall into the no-capital-punishment column. The only question left is whether we will be among the leaders or trail at the very end of the procession.

Fran Kaye is a professor of English and Native American Studies at the University of Nebraska-Lincoln. She is an original member of Nebraskans for Alternatives to the Death Penalty and is the convener of writing groups at the Nebraska State Penitentiary, the men's prison at Tecumseh and the women's prison at York. She has published three books and many articles about the Great Plains.

Immigration in Nebraska