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Friday, June 05, 2015

Unconstitutional Repeal?

Despite Nebraska’s repeal of its death penalty last week, Governor Pete Ricketts has vowed to execute the 10 inmates now on death row.  Here’s the argument:

Nebraska’s repeal legislation states “It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.” 

The state AG’s office says the provision violates the state constitution, which gives the Board of Pardons exclusive power to change final sentences.

The repeal law’s defenders say it does not change the actual sentence of death, but rather removes the state’s ability to carry it out, just like repeal legislation in other states.  And as for the intent provision, well that’s just an intent provision; it doesn’t carry the force of law.


In my mind, the issue is purely academic (which, I’m an academic, so fine by me) because Nebraska will never get the drugs to execute anyway (yesterday’s post).  

But this one has me scratching my head.  Other than the intent provision, the bill effectuates the repeal by simply amending the classes of felonies from 9 to 8 and striking out the death penalty as the highest class one felony.  So there’s that change, and the intent provision.  That’s it.

On the one hand, I think the constitutional claim has legs—it’s one thing to pass repeal legislation, and quite another to legislatively change someone's sentence.  And the intent provision in the statute is the clearest indication of what the statute is intended to do, change the sentence.

On the other hand, the only operative language in the amendment is just removing the death penalty as the highest penalty, and functionally, that does change death sentences to life, which is clearly what intent statute, although perhaps inartfully drafted, is trying to communicate.  Besides, once Nebraska repealed its death penalty, it has no need to literally change existing death sentences to life, because as a practical matter those death sentences cannot be carried out anyway.

Recognizing that, a literal reading of the intent provision can’t be the legislature’s intent, which is itself a sad state of affairs.  

Posted by Corinna Lain on June 5, 2015 at 11:59 AM in Criminal Law, Law and Politics | Permalink


Maybe that's the answer, at least for those seven--the warrant cannot issue because applying current law, the maximum sentence to be imposed is life imprisonment.

Posted by: Howard Wasserman | Jun 8, 2015 5:05:25 PM

"2) One of the inmates has been on the death row since 1980, shouldn't leaving him in a limbo for 25 years constitute cruel and unusual punishment?"

Maybe so -- Justices Stevens and Breyer have written about this issue. But, not as currently understood by clear SCOTUS precedent. Without comment, SCOTUS let someone who was on death row for longer than that be executed by Texas in the last week.

Posted by: Joe | Jun 8, 2015 1:28:21 PM

From the text of the statute, it looks like the death warrant issues once the sentence becomes final on direct review, then gets stayed for habeas, etc. http://law.justia.com/codes/nebraska/2013/chapter-29/statute-29-2543

I'm told that 7 of the 10 people on death row still have active appeals so no warrant could issue regardless. Not sure about the other 3...

Posted by: Corinna | Jun 8, 2015 12:46:31 PM

Two slightly off-topic musings:

1) Wouldn't the act have been far shorter if the had said something to the effect of "Wherever the words "death penalty" and its variants occur they shall be taken to mean life imprisonment"?

2) One of the inmates has been on the death row since 1980, shouldn't leaving him in a limbo for 25 years constitute cruel and unusual punishment?

Posted by: anon | Jun 8, 2015 10:50:45 AM

Corinna: I'm not sure it does. It depends on when a death warrant issues--at the time the judgment of conviction/sentence becomes final or sometime on the eve of execution (following exhaustion of appeals, post-conviction, habeas, etc.). If the former, then the warrant issued prior to the change in the law, while the operative statutory language (minus the intent provision) speaks prospectively to new judgments of conviction. The legislature presumably *wanted* to bar the executive from carrying out executions or *wanted* to require the Parole Board to convert all death sentences to life. I'm not sure the statutory language accomplishes that.

Posted by: Howard Wasserman | Jun 8, 2015 7:43:45 AM

There was a case in Canada called Miller et al v. the Queen which challenged the death penalty as constituting cruel and unusual punishment. After the Court had heard argument, but before it delivered its judgement Parliament abolished the death penalty for criminal offences.

The Court said that the act had rendered the constitutional challenge purely academic. Implicitly accepting that a sentence that had already been handed down could be changed.

Posted by: anon | Jun 8, 2015 6:58:56 AM

Howard, by state constitution, the legislature can't undo a sentence that has become final, only the board of pardons can do that (and I think that's even better authority, stronger, than the doctrine you speak of, no?).

And in the States, I'm pretty sure that if the maximum sentence was changed before sentencing, the defendant would get the benefit of that change--not only because we sentence on the law as of sentencing but also because we give the defendant the benefit of all sorts of legal changes while the case is on direct appeal. But that doesn't help us here because these sentences were issued, and became final, long before the repeal was passed.

So here's my question: what if the intent provision was struck as unconstitutional, leaving just the amended text? Wouldn't that in and of itself remove the judiciary's power to issue a death warrant in those cases? Feels like the governor's claim is much ado about nothing, but maybe I am missing something here...

Posted by: Corinna | Jun 7, 2015 7:17:18 PM

In Canada, the law says that if the maximum sentence is changed between the time of the crime and the sentencing the lesser of the two sentences is handed down. Does the US have anything similar?

Posted by: anon | Jun 7, 2015 1:09:15 AM

Does Nebraska have an equivalent to the doctrine of Plaut v. Spendthrift Farms, under which the legislature cannot undo a judicial decree that has become final?

Posted by: Howard Wasserman | Jun 5, 2015 5:05:12 PM

all good points. And the limbo is what I'm pretty sure what the law means to do--the sentence stays, it's just not capable of being executed (sorry, couldn't resist). This wasn't passed as a moratorium so that reading, while generous, seems a stretch, although it's true that what the Nebraska legislature just did can be undone by future legislation...

Posted by: Corinna | Jun 5, 2015 1:39:17 PM

The "intent" by the actual text is not simply "not to carry it out" but "shall be changed to life imprisonment." It isn't "a decade from now, when we have the drugs etc., maybe." It is that the sentence is changed.

So, I do think the argument "has legs." The question I'd have then is that if the legislature could have simply taken the power to execute out of the hands of the executive. This arguably wouldn't violate the provision since the sentence is still there. It's just in a sort of limbo.

A hypothetical to suggest a justification -- an argument is made that the death penalty is in principle acceptable, but at this time, it simply isn't being carried out in a constitutional and/or adequate matter. So, for the time being, no more death sentences.

As to those already handed out pursuant to law appropriate at that time, we will have a moratorium until it is made clear the death penalty can be carried out adequately. We might still think no more death sentences is good policy. But, it might be justified to complete sentences done in past cases. Prospectively cutting off something doesn't always mean those sentenced under the previous rule benefit.

This might be deemed hair-splitting, but in fact it was suggested at the time:


"Smith, however, added that it doesn’t mean that the Legislature, at a later date, couldn’t enact a new process to carry out those sentences."

Posted by: Joe | Jun 5, 2015 12:46:00 PM

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