|© 2005 www.nebraskapen.org||Last Updated: 2/07/2006|
We direct this letter to you because you were the author of the amendment to LB 1 in the Legislature's Third Special Session in 2002, which added the words "without parole" to the penalty for Class IA felonies such as first degree murder. The Nebraska Supreme Court recently decided in State v. Conover, S-04-0576, that the Legislature's implementation of the penalty of "life imprisonment without parole" was unauthorized by the Governor's call for that special session, and was, therefore, unconstitutionally implemented. However, the Nebraska Supreme Court did not address whether the Nebraska Constitution's Article IV, §13 prohibits the Legislature from implementing any penalty "without parole" at any time.
We are curious as to whether your reaction (or the reaction of the Legislature) to the Conover decision will be to simply attempt to re-implement the penalty of "life imprisonment without parole" in the next regular session of the Legislature in January. If that is your intention, there are a couple of things we think you should consider before doing so.
First, that we and the Appellant in State v. Conover, in response to the Attorney General's claim that "life imprisonment" for first degree murder has always been "without parole" eligibility, argued to the Nebraska Supreme Court that Article IV, §13, prohibits the Legislature from creating such a penalty for any offense other than treason or impeachment. The significant part of Article IV, §13 reads:
Said board [of Parole], or a majority thereof, shall have power to grant paroles after conviction and judgment, under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and cases of impeachment.
This provision of the State Constitution limits the powers of the Legislature. The definition of the word "conditions" does not allow the Legislature to create "restrictions" or "limitations" that result in eliminating the Board of Parole's constitutionally granted power.
Although Nebraska's law schools teach that Nebraska's Legislature is "inefficient or inept,"* we believe that it is the Nebraska Supreme Court's failure to provide the Legislature with guidance as to the Legislature's authority on this issue that is inefficient or inept and borders on irresponsible. Therefore, before you or other Legislators take action on this issue in January, it would be wise to ask the Attorney General for his "learned and well-researched" opinion on this issue. We have all heard enough propaganda simply by reading Nebraska's newspapers; we don't need anymore political advocacy on this constitutional issue. Here are some questions that you should consider having the Attorney General research and answer:
1. Does the language in Article IV, §13 of the Nebraska Constitution, "Said board ... shall have the power to grant paroles ... for any offenses ... except treason and cases of impeachment," grant the Board of Parole the power to parole those persons sentenced to life imprisonment for first degree murder?
2. If not, please explain why the prior Attorney General's Opinions dated, February 21st, 1949, February 23rd, 1976, March 3rd, 1976, and March 4th, 1976, said otherwise?
3. What changes have occurred that would render those prior Attorney General's Opinions erroneous, incorrect, or no longer reasonable?
4. Are the authors of the Attorney General's Opinions subject to the provisions of Article XV, §1 of the Nebraska Constitution?
5. Since the identical language describing the power to parole was reused in the 1968 amendment to Article IV, §13, is the Board of Parole's power to parole under the current Article IV, §13 identical to the former Board of Pardons' power to parole under the old (pre-1968) Article IV, §13? If not, please explain why?
6. What did the language, "under conditions as may be provided by law," mean when it was first adopted into Article IV, §13 in 1920?
7. Does the language, "unless the context otherwise requires" prevent the definitions in Neb.Rev.Stat. §83-170 from being interpreted or applied in a manner that violates the provisions of Article IV, §13 of the Nebraska Constitution?
8. Can the Legislature take away the Board of Parole's power to grant paroles?
9. Under the Nebraska Constitution, in what ways can the Pardons Board control the actions of the Parole Board and its members?
10. What legal remedy, guaranteed by Article I, §13 of the Nebraska Constitution, does a parole eligible inmate have from the denial of parole?
If you do some of the research that led to these questions you would also ask how Clarence Tvrz (Inmate #17443) was paroled on his life sentence for first degree murder in 1968 and did not receive a commutation of his life sentence until 1976. You would also find that we have raised these issues in our lawsuit in the United States District Court in Lincoln; Jacob & Meis v. Clarke, et al., 4:04CV3240.
Second, you may know that this issue is just the tip of the iceberg. The hidden part of this iceberg and the current it flows in is the battle over the death penalty. It appears that both the pro- and anti-death penalty forces are selectively ignoring the Nebraska Constitution's limitation of the Legislature's power to achieve their respective goals.
The anti-death penalty forces believe in the opinion polls that show the public, if given the choice between a death penalty and a true "life without the possibility of parole," would support the "life without parole" option. The voices against the death penalty believe that by creating a "life without parole" they can then persuade the Legislature to eliminate the death penalty because the public would already have the option they support; the "life without parole" penalty.
The pro-death penalty forces argue that there is no need to change anything (like eliminating the death penalty) because we have always had the "life without parole" option the public wants. They assume that juries should be allowed to decide whether the death penalty should be imposed. However, as anyone experienced in such matters knows, anyone opposed to the death penalty is automatically excluded from such juries.
In summary, we believe that if you or the Legislature want to implement a penalty of "life without parole" then the people of the State of Nebraska will first have to amend their State Constitution. We close by reciting the advice of George Washington on such matters. The first President of the United States said in his Farewell Address:
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation [wrongful seizure of power]; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
*Veronica L. Bowen, Casenote, "Manslaughter: State v. Pettit," 24 Creighton Law Review 583, 619 (1991).