LITTWIN: The death penalty’s dying breaths in Nebraska

Someday when they write the history of the death penalty in the United States, it will include the fact that on the day Boston Marathon bomber Dzhokhar Tsarnaev was being sentenced to death in federal court in anti-capital-punishment Massachusetts, the Nebraska legislature was voting nearly two-to-one to repeal the state’s death penalty law.

Yes, Nebraska.

When Nebraska is considering abolishing the death penalty – although the governor has promised a veto – you know where this is headed.

When governor after governor – in states not Nebraska – say that he or she no longer wants to be part of the death machine, you know where this is headed.

When the polls – which not so long ago showed upwards of 80 percent favoring the death penalty – fall closer to 50 percent when life without parole is an option, you definitely know where this is headed. You don’t know how long it will take, but the direction seems clear.

The conversation that John Hickenlooper promised – and has since avoided – on the death penalty is everywhere now, including Colorado. The Aurora theater trial makes it impossible not to have the conversation. If James Holmes is convicted of his terrorist act, will he get the death penalty? And if he does, will it ever be administered in Colorado, where no one has been executed since 1997?

The only thing certain is the uncertainty. And the death penalty – the ultimate penalty – cannot survive without certainty. It’s built on it. It’s about the promise not only that the person being put to death is guilty – and we’ve see how often DNA testing has upended that promise – but that there’s justice in determining who gets life and who gets death.

And although the Supreme Court keeps shifting the rules to try to make the death game equitable, there’s no real argument here. Convicted murderers are sentenced to die disproportionately according to race, gender, geography, the ability to hire a good lawyer, how they scored on an IQ test.

And now we have the bizarre uncertainty of whether an execution will even end in a predictable death. This is partly how Nebraska got into the argument. In Nebraska, as in many states, they’ve run out of the three-drug cocktail that most states use for lethal injection. They’ve run out because the one place in America that made one of the drugs refused to sell them anymore. And so, in what has turned into a black comedy, desperate states finally found a London middleman who shared offices with a driving school, until the FDA stepped in.

Then they tried a place in India – that’s apparently where the governor of Nebraska finally scored – but it’s unclear whether this import business is even legal. States had tried other countries in Europe, but the European Union ruled that Europe was out of the death business.

The three-drug cocktail was invented with little to no scientific input in Oklahoma, where they were desperate enough to try a substitute drug in the botched execution of Clayton Lockett. You may know the story. It has, in large part, changed the debate.

The executioner couldn’t find a vein in Lockett’s arms or legs, and so he ended up with the groin, where the needle didn’t hold. The sedative didn’t work properly, and when Lockett was supposed to be unconscious, he was struggling for breath. And when the death cocktail was supposed to have killed him, he was still alive. Eventually they had to call off the execution, just in time for Lockett to die. And suddenly cruel and unusual were back in the conversation.

You don’t have to feel sorry for Lockett, who kidnapped a woman in a botched robbery, shot her and then buried her alive. The killers themselves are often the best argument for the death penalty. Heinous, after all, is usually the right word. It certainly applies to the Boston bombings, where the bombs were built to inflict maximum damage to innocent people at an event that, as much as any other, defines the city.

And yet, if you trust the polling, the people in Massachusetts didn’t want this ending. The death penalty has been off the books in Massachusetts for three decades, and no one has been executed since 1947. But the trial was taken to federal court, where the death penalty was in play.

And even though a Boston Globe poll showed that only 15 percent of Boston residents were in favor of putting Tsarnaev to death, the jury voted unanimously for the death penalty. It was not a surprise. The jury was selected so that only those who are death-qualified – meaning those drawn from the minority in Massachusetts who believe in the death penalty – could be on the jury.

The verdict, in the words of The New York Times, left the city’s residents “unsettled,” which may leave unsettled those who argue that the death penalty brings closure. It may, if closure means waiting 10 or 20 years as the long series of appeals play out. It may not, if, say, you live in Pennsylvania, where there are 185 people on death row – and no executions since 1999. The Democratic governor there has issued a moratorium on what he calls an “ineffective, unjust and expensive” system.

And in very Republican Nebraska, an unlikely combination of Republicans, Democrats and independents are close to sending the governor a bill to abolish their ineffective, unjust and expensive system. This is not as shocking as you may think. The legislature voted in 1979 to end the death penalty, but it was vetoed by the governor. And 20 years later, it voted for a moratorium, again vetoed by the governor.

In the next week or so, the legislature, on third reading, will try again. In, yes, Nebraska.

Mike Littwin writes for the Colorado Independent (www.coloradoindependent.com).