Why Some States Retain the Death Penalty But Never Use It

Posted in: Criminal Law

Commentators usually divide the world of the death penalty into two groups, those places that “have” or “retain” the death penalty and those that don’t. But this summer, Ohio and Nebraska are joining a number of places that don’t really fit into either of those categories.

These are jurisdictions whose criminal laws authorize capital punishment but which have gone five years or more without executing anyone. They are what I call quasi-death-penalty states, or de facto abolition states.

Adding Ohio and Nebraska will mean that 17 of the 27 states in which capital punishment is legal will not have carried out an execution for at least five years. And in 14 of those 17 states, no one has been put to death in the last ten years or more

This is quite a heterogeneous group. It encompasses states from every region of the country, including the Deep South. Some of the quasi-death-penalty states have large death rows; others have few, if any, inmates awaiting death. Some have formally declared moratoria on executions, but most do not.

Whatever their differences, all remain in a kind of death penalty limbo.

Understanding the death penalty situation in those states is crucial to understanding its status and future in the country as a whole. As was the case in several European countries, de facto abolition is an important step on the road to ending capital punishment altogether.

To be sure, quasi-death-penalty states may be one election or one court decision away from resuming executions, but the longer a place goes without putting anyone to death, the more likely it will be to get rid of that penalty entirely.

In some ways, Ohio and Nebraska might seem unlikely candidates for de facto abolition since they are both deep red states. And they have very different death penalty histories.

Ohio marked the fifth anniversary of its last execution, the 2018 execution of Robert Van Hook July 18. Prior to that, it had been an active death penalty state. Between 1976 and 2018, Ohio executed 56 inmates.

Today there are 123 people on its death row. That is the sixth-largest number in the country.

The refusal of manufacturers to supply the drugs needed for Ohio’s lethal injection protocol plus ongoing litigation about the constitutionality of its method of execution are two factors contributing to its current membership in the group of quasi-death-penalty states.

Over the years, many bills to end capital punishment have been introduced in the Ohio legislature. And a bipartisan abolition bill was recently introduced in this legislative session.

In the meantime, Mike DeWine, Ohio’s Republican governor, has been coy about what he would do if that bill reached his desk. He supported the death penalty as a state senator and when he became Ohio’s attorney general.

Now he simply says, “There’s been no executions in Ohio since I became governor. I don’t anticipate there will be.” And he has remarked that “If the legislature wants to take the issue up, we’ll engage in discussions with the legislature at that time.”

Unlike Ohio, there are only 11 people on Nebraska’s death row, ranking it tenth among states in the size of its death row population. The Associated Press reports that “All of them were convicted of either murdering multiple people or a child, and each case includes aggravating factors such as sexual assaults, cover-ups of other crimes or dismembering bodies.”

While prosecutors in Nebraska continue to seek death sentences in a few cases, the last execution in that state occurred on August 14, 2018, when Carey Dean Moore was killed by a lethal injection of fentanyl. At that time, it had been more than twenty years since Nebraska had executed anyone.

Among the distinctive features of Nebraska’s death penalty is the fact that it is the only state where a sentence of death is decided by a three-judge panel. The panel includes the presiding judge of the trial court and two other judges appointed by the state’s chief justice. The death sentence must be unanimous; otherwise a sentence of life imprisonment is imposed.

Nebraska’s distinctiveness is also reflected in the fact that it formally abolished the death penalty in 2015, only to have it restored through a referendum one year later. This year the legislature will again consider an abolition bill. It takes the form of a constitutional amendment which, if passed, would have to be approved by voters in the 2024 election.

And surveys now show that most Nebraskans favor life in prison over the death penalty for people convicted of murder. Moreover, among those who continue to support the death penalty, feelings do not seem to be particularly intense.

This suggests that even if lethal injection drugs were to become available, there would not be a groundswell among Nebraskans to resume executions. The Associated Press quotes Matt Maly, a conservative opponent of capital punishment, who notes that conversations about why the state is not executing anyone are “not something you’re hearing about in coffee shops or grocery stores.”

A similar thing could be said about the situation of the death penalty across large swaths of the American population.

Looking beyond Ohio and Nebraska, conservative states like Indiana, Kansas, Kentucky, Louisiana, Montana, North Carolina, Utah, and Wyoming are prominent among the group that retain the death penalty but don’t use it.

In fact, Kansas, with nine people on its death row, hasn’t put anyone to death since 1965. Wyoming, which currently has no death row prisoners, hasn’t done so since 1992. And in most places that have the death penalty on the books, death row inmates have a better chance of dying of natural causes than of being executed.

As Robert Dunham, formerly Executive Director of the Death Penalty Information Center, explains, there is a lot of “inertia” about the death penalty even where it is legal. “If,” he says, “you have a jurisdiction in which death sentences (or executions) haven’t been imposed, people either forget how to do it or they sort of realize they don’t miss it and they don’t tend to push for it.”

Ohio and Nebraska are just the latest examples of the many places where it seems that citizens “don’t miss” capital punishment. In the end, the fate of America’s death penalty will be decided as much in those places as in the few states which continue to carry out the bulk of this country’s executions.

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