In state legislatures across the country, lawmakers spent the first few months of 2019 considering whether to repeal – or reinstate – the death penalty. A recent increase in bipartisan support for repeal has enabled state abolition measures to progress further in some states than ever before. Many of these developments have been bolstered by concerns about the high cost of litigating capital cases, the perception of government overreach, and the inability to apply the death penalty fairly and with appropriate due process. Bills to limit the application of the death penalty or to repeal it have been introduced in at least 18 states this year, including Colorado, New Hampshire, Nebraska, and Washington State.
In April 2019, the Colorado Senate considered SB182, a measure that would have repealed the death penalty and replaced it with a sentence of life without the possibility of parole. The bill was initially expected to narrowly pass, but shifts in support shortly before the scheduled vote led sponsors to withdraw it from consideration. The bill described the death penalty as a costly “failed public policy” that risks executing an innocent person, is inconsistent with evolving norms, and cannot be applied fairly.
The state has not executed anyone since Gary Lee Davis in 1997, the only person Colorado has executed since reinstating the death penalty in 1976. It is unclear whether Colorado currently has the ability to go forward with executions, as the specific lethal injection drug required by state law – sodium thiopental – is no longer available for that purpose due to restrictions imposed by the drug’s manufacturers. The measure had the public support of Colorado Governor Jared Polis, who indicated he would sign the bill if passed in the legislature. Governor Polis explained, "It has always been my position that the death penalty is an ineffective deterrent that is discriminatory in its application, and ends up costing taxpayers more than a life sentence more than a life sentence without parole."
Major opposition to the bill came from Democratic State Senator Rhonda Fields, whose son was killed by two of the men on Colorado’s death row. She spoke out against the bill, although it was not retroactive and would have left existing death sentences in place. She claimed that the measure was both rushed and did not include enough input from the families of victims. Sponsors of the bill have said they will reintroduce the bill in the following year’s legislative session, and will give more notice to the families and to the community to provide input.
New Hampshire is poised to become the 21st state to abolish the death penalty in the U.S., and the final New England state to do so. In April 2019, the state Senate voted 17-6 in favor of HB 455, which would change the penalty for capital murder to life without the possibility of parole. The bill also passed through the House of Representatives with a two-thirds majority, making it possible to override New Hampshire Governor Chris Sununu’s veto.
Two previous attempts to repeal the death penalty in New Hampshire—one in 2000 and another in 2018—failed when governors vetoed the bills. In 2014, the state House passed a repeal bill that Governor Maggie Hassan said she would sign, but the measure ended in a 12-12 tied vote in the Senate. New Hampshire has not executed anyone since 1939 and has only one prisoner on death row, Michael Addison, who received a death sentence after being convicted of killing a police officer. Addison’s sentence would not automatically be affected by the bill’s passage, though the state currently has neither a procedure for obtaining lethal injection drugs nor a protocol for carrying out an execution.
‘‘New Hampshire values civil liberties, it values human rights,” said bill co-sponsor State Representative Robert “Renny” Cushing. “New Hampshire can live without the death penalty.”
On May 3rd, as anticipated, Governor Sununu vetoed the bill, setting up a potential override vote in the legislature.
State Rep. Cushing, whose own father and brother-in-law were murdered in unrelated incidents, and who founded “Murder Victims’ Families for Human Rights”, spoke to All Things Considered about the bill on April 19, 2019. https://www.wbur.org/radioboston/2019/04/19/death-penalty-repeal-nh-cushing
In February 2019, a bill to repeal the death penalty failed in the Wyoming state Senate with an 18-12 vote, making it the closest the state has come to outlawing capital punishment in the modern death penalty era. House Bill 145, which would have replaced the death penalty with a sentence of life without parole, previously passed through the House in a 36-21 vote. The bill’s sponsors cited the large cost of defending death penalty cases at the state public defender’s office, estimating possible savings of up to $750,000 a year if the death penalty were abolished. This argument persuaded several Republicans to support the bill, particularly as the state faces reduced revenue from the coal, oil and natural gas industries.
Wyoming does not currently have any prisoners on death row and has only executed one person since the death penalty was reinstated in 1976. The last death sentence imposed in Wyoming was in the case of Dale Wayne Eaton in 2004, but this sentence was set aside by a federal court in 2014 due to ineffective trial counsel, and resentencing proceedings are currently pending. In the 2014 ruling, the district court judge gave the State the option to pursue death for a second time or agree to a sentence of life without the possibility of parole. Though the State failed to provide Eaton with new appointed counsel within the court-ordered time frame, the federal district court ruled in 2016 that this did not preclude the district attorney’s office from continuing to seek the death penalty. Casper District Attorney Mike Blonigen, who prosecuted Eaton’s initial trial, expressed his office’s commitment to continuing to seek the death penalty for Eaton, but noted that “the state has to ask itself a very serious policy question - and this has to be settled in Cheyenne, and not by me - and that is whether we want to continue with this, given that the courts have clearly indicated that they are anti-death penalty.”
In February 2019, the state Senate passed HB 5339 with a 28-19 vote, which would have eliminated capital punishment as a sentencing option for aggravated murder. The bill seemed poised to become law, reportedly supported by many in the House along with Washington Governor Jay Inslee, who indicated his intent to sign the bill if it reached his desk. The bill stalled and eventually failed after it was not called for a vote in the House. Democratic members in the House cited other criminal justice-focused bills as higher priority and part of the reason for their not bringing HB 5339 to the floor.
Several months earlier, in October of 2018, the Washington Supreme Court unanimously struck down the death penalty in the state as unconstitutional, ruling that it was being imposed in an “arbitrary and racially biased manner.” In its decision in State v. Gregory the court ordered all death sentences to be commuted to life in prison. The court largely relied on a University of Washington study that followed Washington capital prosecutions for 25 years and found that juries in the state were 4.5 times more likely to hand out a death sentence to a black defendant than to a white defendant. Prior to that decision, Governor Inslee had already enacted a moratorium on executions.
While the court’s order allowed for the possibility of trying to fix the law, State Attorney General Bob Ferguson praised the decision and requested a bill to abolish capital punishment in the state for good:
“Leaving an unenforceable law on the books increases the risk that we will repeat history. Four times in our state’s history the courts have struck down Washington’s death penalty in a similar way as just happened – as applied. The previous three times, the legislature implemented fixes to the death penalty that ultimately failed to address its arbitrary and racially biased application. I do not think that going through that again would be something the state should do.”
Ferguson noted that he was “extremely disappointed” by the House’s failure to vote on the bill. The bill’s lead sponsor, Senator Reuven Carlyle, blamed the failure on House Speaker Frank Chopp’s refusal to call the bill to the floor. Senator Carlyle further stated that he expects the bill will pass next year with a new House speaker. Representative Chopp has announced he would step down from his leadership position after this year’s legislative session.