I have watched the public debate on the death penalty unfold over many years in our great state. It has reached a boiling point this summer as the governor is bankrolling a petition drive to reinstate this broken and failed policy. I have heard his arguments and the arguments from some in law enforcement supporting this effort.
Their arguments, however, are misinformed. The one thing that is crystal clear -- no matter what you think about the death penalty -- is that it should NEVER be a bargaining chip.
As an attorney for the Beatrice Six, I can tell you that our state saw a horrific miscarriage of justice in our lifetime because the death penalty was used as a bargaining chip. This misuse of the death penalty cost years of my clients’ lives and cost Nebraska taxpayers hundreds of thousands of dollars without securing justice for anyone.
There is no dispute that the threat of an execution is particularly coercive, and will persuade an accused to plead to a lesser charge or sentence. But this special kind of coercion comes with costs we cannot afford to incur. Social science researchers have conclusively documented that high-end inducements such as threats of execution are known risk factors for false confessions.
Particularly disconcerting is when the threat of execution actually induces an accused to falsely believe and develop false memories of a murder they didn’t commit. This is not something that could happen in the abstract. It is a phenomenon that has repeatedly occurred, including here in Nebraska with three of the Beatrice Six.
The threat of execution has often caused an innocent accused to agree to a so-called Alford plea -- that is, plead no contest to a lesser charge while denying guilt but accepting the fact that there is sufficient evidence to result in a conviction. This is also a cost we cannot afford to incur. Once again, this is not a hypothetical point. Two of the Beatrice Six fall into this category.
It is remarkable that execution advocates completely fail to see that using executions as a plea bargaining chip creates the circumstance whereby a proportional application of the death penalty is all but impossible. Application of the death penalty is entirely arbitrary.
Right here in Nebraska, triple murderers are sentenced to life, while a single murderer is sentenced to death. The leader of a brutal gang rape and murder of an elderly woman is sentenced to life, and a rapist-murderer of a young woman is given death. There is no rational explanation for these disparities based on the severity of the crime. Instead, the decision of life or death is mediated completely by chance.
It turns on the competence, or courage, of a county attorney willing to take a capital case to trial, verses an inexperienced, or insecure, county attorney who is not.
Another false argument often posited is that the threat of execution “encourages” pleas to charges resulting only in life in prison. This argument ignores the fact that life in prison is, in effect, a death sentence. Whether executed or confined to prison for life, the result is the same -– that person never walk free again. The difference, however, is overwhelmingly significant. Exonerating someone who is actually innocent is pretty much a hollow gesture when the innocent has been executed.
As a governmental policy, execution schemes are abject failures that come at an enormous cost -– both financially and when the human cost of a wrongful conviction is factored in.
If one is willing to face reality, one cannot ignore that common sense and the interests of justice require that we put an end to state-sponsored executions.
Jeff Patterson of Lincoln was an attorney for the Beatrice 6.