Bucking Trends, Death Penalty Wins Voters' Support in 3 States

Americans' support for capital punishment has been waning, but you wouldn't know that by looking at Tuesday's election results.
by | November 9, 2016
An execution chamber at the Oklahoma State Penitentiary in McAlester. (AP/Sue Ogrocki)

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

The death penalty is legal in 30 states, but a growing number have repealed it in the last decade. California and Nebraska, however, won't be adding their states to the list.

While voters in those two states decided to keep capital punishment, voters in Oklahoma -- where botched executions have led to a temporary moratorium -- strengthened their state's ability to carry it out.

The death penalty appeared on the ballot in three states this year at a time when many Americans are questioning whether execution is a just punishment or even an effective means for deterring future crime. Though a majority of adults still favor the death penalty for people convicted of murder, support has steadily eroded over the last 20 years and the percent of Americans who favor the death penalty is at its lowest point since the 1970s.

Opponents of capital punishment argue that it sometimes results in the death of innocent people, it doesn't deter crime and it disproportionately affects people of color and the poor. Advocates say it's the appropriate sentence for the most heinous murders and it provides solace to victims' families.

Like the issue of capital punishment, this year's ballot measures on the topic were complicated.

In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot. If voters had ultimately upheld the law, it would have been the first state under GOP control to ban capital punishment since 1973.

The ballot measure gave voters two options: "repeal" or "retain." People who chose "repeal" were voting to repeal the legislature's repeal of the death penalty, thus keeping the option of executions available. The repeal side won almost 61 percent of the vote.

Nebraska GOP Gov. Pete Ricketts campaigned in favor of capital punishment and contributed about $400,000 to the effort. In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.”

In California, the ballot featured two conflicting propositions -- one that would have repealed the death penalty and another that sought to keep it and speed up the legal process before executions. The repeal measure failed with about 42 percent of the vote and the pro-death penalty measure passed with slightly less than 51 percent of the vote.

And in Oklahoma, the legality of capital punishment wasn't on the ballot, but about two-thirds of voters decided to add a section to the state's constitution that affirms the state’s authority to carry out executions, regardless of which method is used. After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure exempts the death penalty -- but not specific methods of execution -- from being invalidated by courts as cruel and unusual punishment.

"It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman. "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”

Critics of the Oklahoma ballot question said the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits. Several civil rights experts raised concerns that the measure will strip citizens of their constitutional protections against cruel and unusual punishment.

Although voters in all three states upheld the death penalty, there was some evidence that the framing of the question made a major difference in how people responded. In Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes. But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.