As the dust continues to settle from the November 3rd general election two weeks ago, some new realities are starting to come into focus. Follow along as we zoom in on what that means for capital punishment.
The biggest news is that sitting President Donald J. Trump has lost his bid for reelection, marking the first time since 1992 an incumbent President has failed to secure a second term. While it's true that the President (along with many of his political allies in the House and Senate) have thus far refused to acknowledge this outcome, experts across the nation say their claims of widespread election fraud are baseless. Recounts continue in some states, but vote margins appear insurmountable - that's why, barring some shocking new development, it appears Joseph R. Biden will become the 46th President of the United States of America, and Senator Kamala Harris will be sworn in as Vice President.
Although Nebraskans for Alternatives to the Death Penalty is a nonpartisan organization, one which welcomes supporters from every shade and hue of the political spectrum, it's nevertheless fair to say this outcome represents an exciting new opportunity for abolition. That's because President-Elect Biden's policy platform included this key phrase: "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government's example." Furthermore, Vice President-Elect Harris has made unequivocal her opposition to the death penalty; arguing during a primary debate that "My entire career I have been opposed, personally opposed, to the death penalty, and that has never changed."
It's hard to imagine what state-level incentivizations might look like, in part because current projections suggest that the House of Representatives will remain under Democratic control while the Senate appears likely to continue under Republican management. That reality may also complicate the incoming administration's attempts to deliver on its promises of abolishing the federal death penalty beyond its own term(s), but it's important to note that a Biden administration also comes with a Biden Department of Justice. This means President Biden would not need Congressional approval to declare a moratorium on federal executions, dismantle the federal execution apparatus, and commute the sentences of everyone currently awaiting execution on federal death row.
However, the official transition is still at least two months away. In the meantime, there are three more federal executions scheduled to be carried out by the outgoing administration.
Orlando Hall, Thursday, November 19. Mr. Hall is scheduled to be the 8th American put to death since the federal government resumed executions in July for the first time in 17 years. His lawyers are seeking an 11th-hour stay, based on the fact that Hall, a Black man, was sentenced to death by an all-white jury they argue was by design.
Lisa Montgomery, Tuesday, December 8. Ms. Montgomery is the only woman on federal death row, and her attorneys have argued for years that it was not malice but an extremely dysfunctional childhood (which included intense sexual abuse and trafficking) that led her to commit her offense. In recent days, two of Ms. Montgomery's lead attorneys have contracted the coronavirus through the course of flying cross-country to visit her; they now seek a reprieve while they recover.
Brandon Bernard, Thursday, December 10. Mr. Bernard was convicted as the accomplice to another man executed just last month, Christopher Vialva, for a crime that occurred when he was only 18 years old. His legal team alleges both that the original prosecution overhyped his role in the killings and that many neuroscientists believe the human brain does not fully develop until a person's early 20s.
Regardless of whether President-Elect Biden is ultimately able to deliver on his campaign promise to abolish the federal death penalty and incentivize states to do the same, opponents of capital punishment everywhere are looking forward to an end to the current administration's killing spree.
The election has also brought some exciting new opportunities around the country, as candidates pledging systemic reforms (including reduced use or abandonment of the death penalty) have won prosecutor races in a number of heavily populated counties: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH).
Why does this matter? Prosecutors cannot repeal (or implement) the death penalty themselves, but they often have broad discretion when it comes to deciding when to threaten or pursue the death penalty in eligible cases. That means some prosecutors have the potential to almost single-handedly fill up death rows! Case in point: collectively, prior prosecutors in the four jurisdictions listed above, who elected new prosecutors this month, are directly responsible for 10% of the country's total death row population.
The Executive Branch in Nebraska was not up for contention in 2020; pro-death penalty Governor Pete Ricketts remains on course to finish his second term in 2022. Thankfully, his Department of Corrections currently lacks some of the drugs used in its statutory execution protocol, so for the time being the death penalty in the Cornhusker State lies dormant with no executions on the horizon. Due to term limits, Gov. Ricketts will not be eligible to run for a third term, and although it's still too early for a primary field to take shape, we can certainly hope for candidates who recognize the brutality and injustice of capital punishment and will commit to take steps toward ending it.
Meanwhile, the nation's only single-chamber state legislature as seen a slight shift. Although the Nebraska Legislature is officially nonpartisan, members self-identifying as Republican have seen their majority increase by two of the chamber's seats. This is less important than it might sound: although many policy matters seem to split down partisan divides, frank opposition to capital punishment defies that norm. In fact, without Republicans it would not have been possible to override Gov. Ricketts' 2015 veto of LB268, the bill that succeeded in abolishing Nebraska's death penalty before a 2016 ballot initiative struck it from the books!
The next legislative session is less than two months away, and we look forward to working with all 49 state senators, regardless of party affiliation. To make this state a more just and compassionate place to live, we're going to need everyone!