How much does the death penalty cost Nebraska?

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WASHINGTON (Gray DC) This election day, voters will decide whether or not to bring the death penalty back to the Cornhusker state.

This comes a year after Nebraska became the first red state to repeal it in more than 40 years. When it comes to crime and punishment in Nebraska, what costs more?

“When you look at the cost of the death penalty, it isn't the cost of execution, it's the cost of the entire process," said Robert Dunham, executive director of the Death Penalty Information Center.

Dunham says evidence suggests the death penalty costs more than life in prison, pointing to a recent study from Creighton University which estimates the death penalty costs Nebraska $14.6 million a year.

"The study that was done in Nebraska is consistent with everything we've seen everywhere else. The methodology is clear," Dunham said.

Anthony Yezer, an economics professor at George Washington University says the study's findings are meaningless.

"I don't think that there's anyway in which through standard economic research I can sort out the relationship between adopting the death penalty and expenditure on crime. It's just too complex of a system. We can't have a controlled experiment," Yezer explained.

"The model and its results are meaningless because they are a classic example of putting the con into econometric analysis that has been disparaged in the economic literature referenced in my textbook," he said.

Here’s what you need to know when you’re making your final decision on this measure. If you want to do away with the death penalty, you darken the oval next to Retain. That would keep a state law upholding the ban. If you want to reinstate the death penalty, you vote to repeal the law.

If the death penalty is successfully reinstated, some experts think it could later be found unconstitutional.

"This is not a question of will Nebraska's death penalty be challenged. It has been challenged," Dunham said, referring to recent challenges filed by death-row prisoners in Nebraska's state courts following the state Supreme Court rulings in Florida and Delaware that interpreted Hurst.*

This January, the Supreme Court ruled on a case (Hurst vs. Florida) that found Florida's death penalty violated the sixth amendment. That's because it turned on whether the Sixth Amendment gave capital defendants the right to have a jury determine all facts that are necessary to imposing the death penalty.

Dunham says that's similar to how Nebraska's statute works because the statute vests key fact-finding authority in the trial judge, rather than the jury.

“That's another consideration for voters to think about when they go to the polls. If they reinstate the death penalty, are they really reinstating something that's constitutionally viable? All of the most recent evidence suggests that it may not be," Dunham said.

Dunham says under the defense argument, Nebraska could still have a three judge panel make the ultimate sentencing decision, but only after the jury unanimously found (1) that aggravating circumstances existed; (2) that the aggravating circumstances they found to exist are sufficiently weighty to potentially justify a death sentence; and (3) that aggravating circumstances not only outweigh mitigating circumstances, but that the weight of the mitigating circumstances do not even approach the weight of the aggravating circumstances. If the jury does not make any of those findings and the judges vote for death, that sentence violates Hurst. But if the jury has made all three of those fact determinations, the three-judge panel can then choose which sentence to impose without violating Hurst.

A recent Pew Research Poll shows support for the death penalty across the country is the lowest its been in nearly four decades

The Nebraska's Attorney General's Office have issued the following statement in response to our story: Hurst vs. Florida "does not impact Nebraska’s death penalty status. Hurst decision held that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. Nebraska’s statutes are in full compliance with this requirement. Nebraska’s death penalty statutes have already been held to be constitutional by the federal courts. Nebraska’s death penalty procedure differs greatly from Florida’s. Thus, the case of Hurst v. Florida, 136 S.Ct. 616 (2016) does not impact Nebraska’s death penalty statutes. The Hurst decision held that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. Nebraska’s statutes are in full compliance with this requirement."

"Nebraska’s death penalty statutes fully comply with the Sixth Amendment. In Nebraska, a jury is required to make specific findings of aggravating circumstances before a defendant can be sentenced to death," said Suzanne Gage, Director of Communications with the Nebraska Attorney General.

"This process occurs following the guilt/innocence phase of the trial. During the aggravation hearing, the jury considers evidence related to the aggravating circumstances which were alleged in the charging document. The existence of each aggravating circumstance must be proven beyond a reasonable doubt, and the jury’s verdict must be unanimous with regard to each aggravator. The verdict of a jury in Nebraska clearly specifies which aggravating circumstances are found to exist, and the judge must accept the jury’s findings of fact. Following a jury’s finding of aggravating circumstances, a three-judge panel weighs those aggravating circumstances against any mitigating circumstances, and then imposes a sentence of life imprisonment or death."

"Nebraska’s death penalty procedures differ greatly from Florida’s. Florida’s statues do not comply with the Sixth Amendment. Nebraska’s statutes fully comply with the Sixth Amendment," Gage said.