For the first time in 34 years, a majority of Nebraska lawmakers seems to support abolishing the state's death penalty.
But a bill they considered Monday to do so appears to be going nowhere since a "test vote" showed there probably is not enough support to stop a filibuster.
Lawmakers began debate on the bill (LB543) by Sen. Ernie Chambers of Omaha to change the death penalty to life in prison without the possibility of parole -- Chambers' 37th attempt to do so.
Custom dictates first-round debate on a bill can last as long as eight hours. At that point, it takes 33 of the 49 senators' votes to end debate and move to a vote.
But after Omaha Sen. Beau McCoy launched a filibuster against the measure, Sen. Brad Ashford of Omaha decided to float a trial balloon by filing a motion to kill the bill and then asking for a vote to gauge support.
A vote against killing the bill was, in essence, a vote in support of abolishing the death penalty. The tally was 18 for killing the bill and 26 against -- more than the 25 needed to advance the bill to second-round debate but not the 33 needed to end the filibuster or even the 30 required to override an expected veto by Gov. Dave Heineman.
Lawmakers will reach the eight-hour limit Tuesday. Speaker Greg Adams usually will not bring a bill back for further debate at that point unless supporters can prove they have the 33 votes to end the filibuster.
Earlier, Chambers said "there is randomness, arbitrariness and no standard for applying" the death penalty.
The most ardent death penalty opponent in the Legislature, Chambers was re-elected to his North Omaha seat in November after sitting out four years because of term limits. Each year from 1973 to 2008, he introduced a bill to abolish the death penalty. In 1979, his bill passed but was vetoed by then-Gov. Charles Thone.
Noting that supporters of the death penalty say capital punishment is justified for the most heinous murders, Chambers offered details of several cases in which killers did not get the death penalty, including one where a man drove a car through a bedroom wall and shot his wife six times in front of their children.
He said Nebraska's 93 county prosecutors decide whether to seek the death penalty.
"They have absolute discretion as to what charge will be filed and whether or not the death penalty will be sought," he said.
Chambers quoted U.S. Supreme Court William J. Brennan, who said in a 1976 opinion: "Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment. … The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as non-humans, as objects to be toyed with and discarded. It is thus inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity."
Opposition to the bill was led by Sen. Beau McCoy of Omaha.
"I plan to make the case … that the death penalty is appropriate for certain crimes," McCoy said. "I believe that the individuals that are currently on death row belong there.
"I don't need a poll to guide my vote on this issue. Because there are communities that have experienced the most heinous crimes that you can imagine."
Ashford, chairman of the Judiciary Committee, expressed disdain for McCoy's attempt to jam up debate and delay or prevent a vote on the bill, as McCoy and his allies have done on a bill that would expand Medicaid coverage to more people.
"This body is getting far into that sense of avoidance," Ashford said. "This bill deserves a final vote. Stopping votes is ludicrous. And it is contrary to our mission since 1937," when the one-house Legislature was established.
Sen. Mark Christensen of Imperial said feedback he got from his constituents showed overwhelming support for the death penalty.
Sen. Galen Hadley of Kearney said he no longer supported the death penalty.
"I've been pro-death penalty pretty much all my life, but I've come to the conclusion that I don't think it works.
"People that are in favor of the death penalty talk in terms of deterrence. Those who are against it talk about it either from a moral standpoint or the fact that it's arbitrary and capricious," Hadley said. "I think most studies have shown that it is not a deterrent. For something to be a deterrent, it should be meaningful swift and certain. That certainly is not the death penalty."
Richard Dieter, executive director of the Death Penalty Information Center, told the Legislature's Judiciary Committee earlier this year that studies have shown the average death penalty case costs $3 million to prosecute, compared to $1.1 million for cases of life without parole.
Since 1976, when the U.S. Supreme Court affirmed the constitutionality of capital punishment, Nebraska has spent an estimated $100 million on death penalty cases and executed three people.
"Why do we have something on our books that is so inefficient? So costly?" asked Sen. Colby Coash of Lincoln, who also once supported the death penalty.
Coash said Nebraska would never again carry out an execution because it was becoming increasingly difficult to get lethal injection drugs.
"There isn't going to be another execution in this state," he said. "It's not gonna happen.
"What good has the death penalty done for our citizens? What good has been done?" Coash asked. "Without an execution, the death penalty is pretty meaningless. It hasn't saved money. It hasn't deterred any crime."