Defining Votes #8: LB36's Kinder, Gentler Means Of Execution

by: Kyle Michaelis

Wed Jun 03, 2009 at 01:43:41 AM CDT

On Sunday, the World-Herald reported:

The philosophical shift in the 49-member body, which has seen 36 new senators in the past three years after the establishment of term limits, was most evident on lethal injection.  That bill passed with only 12 "no" votes.  Two years ago, twice as many senators voted to repeal the death penalty outright.

That ruling left our state without a legal means of execution and put the death penalty front-and-center in the public eye right in the middle of an election year.  The strength of the 2007 repeal effort was its stealth, as a near-majority of the Legislature demonstrated a surprising willingness to end capital punishment after almost two decades without any serious debate of the issue.  However, that willingness had already started to break last year when death penalty repeal was brought before the same class of Senators and three of them (Abbie Cornett, Greg Adams, and Tom Carlson) changed their votes to support the death penalty after voting to end it just one year earlier.

It's worth noting that 10 of the 20 State Senators who still voted in favor of repealing the death penalty in 2008 were term-limited that same year.  Thus, they had less at stake and were truly in a position to vote their conscience.  Another supporter of repeal, Gail Kopplin, was the lone State Senator defeated for re-election.  Frankly, what this demonstrates isn't so much an ideological shift as it is a more responsive political body better reflecting the will of the people - no matter how unfortunate that may be for our immediate purposes.

That said, I don't mean to diminish the courage of those who took up the fight against the death penalty this year without being able to rely upon former State Sen. Ernie Chambers, their longtime champion.  I'd earlier devoted considerable attenton to this issue as it was debated and delayed by the Judiciary Committee.  However, once LB36 finally proceeded to the floor of the full Legislature, I count five real votes of consequence.

The first of these was State Sen. Brenda Council's amendment to repeal the death penalty outright, which failed on a vote of 13 to 33.  That was followed by the vote to advance Flood's lethal injection bill from general file, which had 34 votes in favor and only 7 opposed.

Next came Danielle Nantkes' motion to bracket the bill until May 29, 2009, which would have effectively killed the legislation for the year.  This motion failed on a vote of 11 to 35.  That vote would end up being nearly identical - in reverse - to those advancing the bill from select file and ultimately passing it on final reading.  Those votes were 34 to 11 and 34 to 12, respectively.  However, Ken Haar missed this final vote and later clarified on the record that his would have been the 13th vote in opposition to LB35.

A core group of State Senators made up the backbone of this minority - Tanya Cook, Cap Dierks, Amanda McGill, Colby Coash, Haar, Nantkes, and Council.  Note the two Republicans in that bunch - Dierks and Coash.  I must also give credit to State Senators Heath Mello, Steve Lathrop, Annette Dubas, Jeremy Nordquist, Gwen Howard, and Norm Wallman for taking a tough stand and ultimately opposing lethal injection with their final votes on the bill.

As I've stated before, my own feelings about the death penalty are mixed.  Were I in a position to vote, though, I can't imagine how my conscience might overcome the proposed findings at the heart of Council's amendment to LB36 that would have repealed the death penalty.  The amendment artfully and devastatingly stated:

The Legislature finds that:

(1) Life is the most valuable possession of a human being. The state should exercise utmost care to protect its residents' lives from homicide, accident, and arbitrary taking by the state;

(2) The experience of this state with the death penalty has been fraught with errors, frustration, and delay due to constitutional mistakes in the statutes, defective legal procedures and implementation of the statutes, lack of uniformity in application, and inordinately heavy expenditures of money and time;

(3) The financial costs of attempting to implement the death penalty statutes are not justifiable in light of the other needs of this state and particularly because evidence does not establish that the death penalty effectively deters first-degree murder;

(4) The Legislature remains troubled by the lack of any meaningful procedure in the courts to ensure uniform application of the death penalty throughout the state despite the Legislature's express finding in 1978 of a radical lack of uniformity....

(8) The existing capital punishment scheme is a failure and has taken an unacceptable toll on the state's reputation for simple fairness, basic decency, and care for the dignity of human life. The state rejects the concept that by killing it can teach its residents not to kill.

The voting record on LB36 is included below the fold.  It's intricacies make for an interesting portrait of how our legislature works and who our State Senators really are.  Please take a look and comment freely.

Voting in the affirmative, 13:
Ashford Cook Haar Mello Rogert
Avery Council Lathrop Nantkes
Coash Dierks McGill Nordquist

Voting in the negative, 33:
Adams Friend Harms McCoy Stuthman
Campbell Fulton Heidemann Nelson Sullivan
Carlson Gay Howard Pahls Utter
Christensen Giese Janssen Pankonin White
Cornett Gloor Karpisek Pirsch Wightman
Fischer Hadley Lautenbaugh Price
Flood Hansen Louden Schilz

Present and not voting, 1:
Wallman

Excused and not voting, 2:
Dubas Langemeier

The Council amendment lost with 13 ayes, 33 nays, 1 present and not voting, and 2 excused and not voting.

ADVANCEMENT FROM GENERAL FILE

Voting in the affirmative, 34:
Adams Flood Hansen McCoy Schilz
Ashford Friend Harms Nelson Stuthman
Campbell Fulton Heidemann Pahls Sullivan
Carlson Gay Janssen Pankonin Utter
Christensen Giese Karpisek Pirsch White
Cornett Gloor Lautenbaugh Price Wightman
Fischer Hadley Louden Rogert

Voting in the negative, 7:
Coash Council Haar Nantkes
Cook Dierks Howard

Present and not voting, 6:
Avery McGill Nordquist
Lathrop Mello Wallman

Excused and not voting, 2:
Dubas Langemeier

Advanced to Enrollment and Review Initial with 34 ayes, 7 nays, 6 present and not voting, and 2 excused and not voting.

NANTKES BRACKET MOTION (to kill LB36 for the year)

Voting in the affirmative, 11:
Avery Council McGill Nordquist
Coash Dierks Mello Wallman
Cook Howard Nantkes

Voting in the negative, 35:
Adams Fischer Hadley Lautenbaugh Price
Ashford Flood Hansen Louden Schilz
Campbell Friend Harms McCoy Stuthman
Carlson Fulton Heidemann Nelson Sullivan
Christensen Gay Janssen Pahls Utter
Cornett Giese Karpisek Pankonin White
Dubas Gloor Langemeier Pirsch Wightman

Present and not voting, 2:
Lathrop Rogert

Excused and not voting, 1:
Haar

The Nantkes motion to bracket failed with 11 ayes, 35 nays, 2 present and not voting, and 1 excused and not voting.

ADVANCEMENT FROM SELECT FILE

Voting in the affirmative, 34:
Adams Flood Hansen Louden Schilz
Ashford Friend Harms McCoy Stuthman
Campbell Fulton Heidemann Nelson Sullivan
Carlson Gay Janssen Pahls Utter
Christensen Giese Karpisek Pirsch White
Cornett Gloor Langemeier Price Wightman
Fischer Hadley Lautenbaugh Rogert

Voting in the negative, 11:
Coash Dierks McGill Nordquist
Cook Dubas Mello Wallman
Council Howard Nantkes

Present and not voting, 3:
Avery Lathrop Pankonin

Excused and not voting, 1:
Haar

Advanced to Enrollment and Review for Engrossment with 34 ayes, 11 nays, 3 present and not voting, and 1 excused and not voting.

FINAL READING

Voting in the affirmative, 34:
Adams Flood Hansen McCoy Schilz
Ashford Friend Harms Nelson Stuthman
Campbell Fulton Heidemann Pahls Sullivan
Carlson Gay Janssen Pankonin Utter
Christensen Giese Karpisek Pirsch White
Cornett Gloor Langemeier Price Wightman
Fischer Hadley Louden Rogert

Voting in the negative, 12:
Coash Dierks Lathrop Nantkes
Cook Dubas McGill Nordquist
Council Howard Mello Wallman

Present and not voting, 1:
Avery

Excused and not voting, 2:
Haar Lautenbaugh

A constitutional majority having voted in the affirmative, the bill was declared passed and the title agreed to.