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What is the meaning of life in Nebraska? When it comes to what a life sentence means, do you really know what the Nebraska Constitution says about life?
If you watch closely this month you will witness life in Nebraska imitating art. On October 5th, the Nebraska Supreme Court heard oral arguments in the case, State v. Marrs. Mr. Marrs received a minimum life sentence to a maximum life sentence for second degree murder. The authorities who run the State believe that a minimum life sentence means "life without parole." Mr. Marrs' lawyers argued that this usurps the power the Nebraska Constitution grants to the Board of Parole.
Do you know what the Nebraska Constitution says about a life sentence and parole eligibility?
The art of literature shows how corruption silently creeps into our lives. If you went to school in Nebraska you probably read George Orwell's Animal Farm in (what they now call) middle school. In Animal Farm the animals paint their constitution on the side of a barn. "All animals are equal," it says. Then one day the animals find that, without their knowledge or consent, the words, "but some are more equal than others," have appeared. The authorities, the pigs, tell the animals their constitution has always been that way.
Does a minimum life sentence in Nebraska mean life without parole eligibility? What does Nebraska's Constitution say about a life sentence and parole? If the Nebraska Supreme Court tells you that a life sentence in Nebraska has always meant "life without parole," do you know if that is the truth or just another example of Animal Farm's corruption?
The Board of Parole's power to parole is created by Article IV, §13 of the Nebraska Constitution. The separation of powers provision of Article II, §1 of the Nebraska Constitution forbids the Legislature from taking the Board's power away from them. But what does Article IV, §13 say and mean?
Article IV, §13 of the Nebraska Constitution forbids the Legislature from creating criminal penalties without parole eligibility. The relevant portion of today's Article IV, §13 says:
The Legislature shall provide for the establishment of a Board of Parole and the qualifications of its members. Said board, 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.
Article IV, §13, Nebraska Constitution
Through Article IV, §13, the people of the State of Nebraska have created a constitutional power to parole offenders "for any offenses committed against the criminal laws of this state except treason and case of impeachment." Therefore, at some point during every criminal sentence imposed in this state (except those for treason or impeachment) the Board of Parole shall and must have the power to parole the offender serving that sentence. The Board of Parole may exercise this power to parole when the offender reaches their parole eligibility date which comes as a consequence of the judgment (sentence) imposed by the sentencing court.
Because the State Constitution is a limitation of the legislature's power; City of York v. York Cty. Bd. of Equalization, 226 Neb 297, 664 N.W.2d 445 (2003) and Chicago, Burlington & Quincy Railroad Co. v. Otoe County, 83 U.S. 667, 16 Wall. 667 (1872); this constitutional grant of power to the Board of Parole places (at least) two relevant limitations on the Legislature's power to prescribe punishments and the Court's power to impose sentences in Nebraska. First, the Nebraska Legislature cannot create a criminal penalty without parole eligibility. "Without parole" would eliminate the Board of Parole's constitutionally created power to parole. While the Legislature has the authority to say when in a sentence an offender becomes eligible for parole, the Legislature cannot say that "when" means "never." Second, the Legislature is not authorized to require a commutation before an offender gets a parole eligibility date. Article IV, §13 says the Board "shall have the power to grant paroles after conviction and judgment." It does not say "after conviction, judgment and commutation." Thus, parole eligibility is a consequence of the criminal judgment; the sentence imposed a judge in the judicial branch of government. The Legislature cannot delegate the Board of Parole's constitutionally granted power on anything other than the conviction and judgment. Requiring the Board of Pardons to commute a sentence before an offender has a parole eligibility date unconstitutionally shifts the Parole Board's power to another state agency; in this case an executive branch agency. State ex rel. State Railway Comm. v. Ramsey, 151 Neb 333, 37 N.W.2d 502 (1949) (The Legislature has no power to divest a constitutionally granted agency of its constitutional jurisdiction by transferring it to another agency.)
However, some people want to interpret Article IV, §13's phrase, "under such conditions as may be prescribed by law," as meaning the Legislature can create conditions under which the Board of Parole does not have the power to parole offenders. Because this phrase is ambiguous as to the meaning of the word "conditions, " it opens Article IV, §13 to construction by the Nebraska Supreme Court. See, State ex rel. School Dist. of Scottsbluff, Scotts Bluff Cty. v. Ellis, 168 Neb 166, 95 N.W.2d 538 (1959) (Before the rules of construction become available in regard to a constitutional provision, it must be demonstrated that the provision is not clear as to its meaning and the intent of the people in adopting the provision can be determined only by construction.) See, also, State ex rel. Stenberg v. Omaha Exposition & Racing, Inc., 263 Neb 991, 644 N.W.2d 563 (2002).
"Ambiguity" exists in an instrument when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. Drain v.Bd. of Educ. of Frontier Cty. School Dist. No. 46, 244 Neb 551, 508 N.W.2d 255 (1993). The phrase, "under such conditions as may be provided by law," can also be (and should be) interpreted to mean that the "conditions" that paroled offenders must abide by while on parole "may be provided" by laws adopted by the Legislature. In fact, the Legislature has adopted statutes creating just such "conditions." See, Neb.Rev.Stat. §83-1,116 & 83-1,117.
Furthermore, the interpretation that would allow the Legislature to place "conditions" on the power to parole would allow the Legislature to say the Board did not have the power to parole offenders who committed murder, for example. However, that directly conflicts with the plain language of Article IV, §13, which provides the Board with the power to parole offenders "for any offenses" except treason or impeachment. Therefore, the phrase in question is certainly ambiguous and requires construction by the Court.
When construing the meaning of a constitutional provision, the Court may use historical or operative facts in connection with the adoption of a constitutional amendment in order to interpret the language of the Constitution. Duggan v. Beerman, 249 Neb , 544 N.W.2d 68 (1996). The language of the Constitution is to be interpreted with reference to established laws, usages, and customs of the country at the time of its adoption. Dwyer v Omaha-Douglas Public Bldg. Comm., 188 Neb 30, 195 N.W. 2d 236 (1972); see also, State v. McMullen, 119 Neb 739, 230 N.W.2d 677 (1930).
Article IV, §13, was amended to its current form by election in 1968. Its prior form was enacted as a result of the 1919-1920 Constitutional Convention. The 1967 Legislative Bill that proposed the amendment took the prior Article IV, §13, and added new language to create the Board of Parole, but kept the prior language about the power to parole. See, Laws 1967, LB 561. Thus, the power to parole did not change in 1968, just who had that power was changed. The phrase, "under such conditions as may be prescribed by law," was preserved just as it was in the 1920 Constitution.
That the established law, usage and customs at the time of the 1968 amendment did not allow the Legislature to place "conditions" on the Board's power to parole can be seen from the Attorney General's Opinions at that time. From 1949 through 1976, the Attorney General's Opinions consistently found that the Legislature was prohibited by the language in Article IV, §13 from creating a limiting "condition" on the power to parole by establishing a criminal penalty "without parole eligibility." See, A.G.'s Opinion dated February 21, 1949; A.G.'s Opinion No. 24, dated March 5th, 1973; No.184 dated February 23rd, 1976; No. 189 dated March 3rd, 1976; and No. 190 dated March 4th, 1976. Their interpretation of this constitutional language as limiting the Legislature is still supported by modern case law. See, State v. Agguire, 871 P.2d 616 (Wash.App. 1994). It was not until Paul Douglas became Attorney General that an A.G.'s Opinion in 1977 suggested that the Legislature could create a penalty "without parole." However, coming 10 years after the amendment to Article IV, §13, Paul Douglas' Opinion is not the established law, usage or custom at the time of Article IV, §13's adoption, and is, therefore, irrelevant.
We must also look to the proceedings of the 1919-1920 Constitutional Convention when that phrase was first adopted into Article IV, §13, because the touchstone in determining the meaning of ambiguous constitutional language is to discover and give effect to the intent of the framers of the Constitution and the people in adopting it. State ex rel. Douglas v. Beerman, 216 Neb 849, 347 N.W.2d 297 (1984), see also In re Applications A-16027, et al., 242 Neb 315, 495 N.W.2d 23 (1993). That phrase means what the people who adopted it meant when it was adopted. State ex rel. Spire v. Conway, 238 Neb 76, 472 N.W.2d 403 (1991); see also State ex rel. State Railway Comm. v. Ramsey, 151 Neb 333, 37 N.W.2d 502 (1949). The powers set out in the Constitution do not simply change with time. Id. The power to parole was not changed by the 1968 amendment; the amendment only changed who would have that power. Therefore, we must look back in time to when that phrase was first put into the Nebraska Constitution.
The Nebraska Constitution of 1875 said nothing about parole. The 1875 Constitution did, however, grant the Governor the power to grant reprieves, commutations and pardons.
The governor shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons.
Article V, §13, Nebraska Constitution of 1875
When parole was first put into practice in Nebraska in 1893, it was a power granted by the Legislature to the governor by statute. See, Sec. 570, Compiled Statutes of 1893. It should be noted that Sec. 570 of 1893 required those offenders sentenced for murder in the first and second degree to serve 25 full years before the governor could parole them. Thus, in 1893, every life sentence had a parole eligibility date.
That first system of pardons and paroles created some problems. In response to these problems the Constitutional Convention of 1919-1920 proposed changes to the Nebraska Constitution which the voters accepted and enacted in 1920. First, and most important, was that the power to parole was now created and granted by the Constitution, from the people themselves rather than by the Legislature. Second, was the creation of a Board of Pardons composed of the Governor, Attorney General and the Secretary of State. Third, was the addition of that phrase, "under such conditions as may be provided by law." It is important to understand how and why these changes were made to create Article IV, §13 of the 1920 Constitution, which reads:
The Governor, Attorney General, and Secretary of State shall constitute a board to be known as the Board of Pardons, of which the Governor shall be chairman. Said board or a majority thereof, shall have power to remit fines and forfeitures and to grant commutations, pardons and paroles after conviction and judgment, under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of the state except treason and cases of impeachment.
Article IV, §13, Nebraska Constitution of 1920
Up to the 1920 Constitutional Convention the public saw Nebraska Governors granting too many pardons and paroles upon "conditions." Although the Governor simply imposed more serious "conditions" for serious crimes, the public only saw this as serious offenders being released far too early.
The 1875 Constitution had not prevented this. The 1875 Constitution allowed the Governor to impose conditions, restrictions or limitations "as he may think proper." Obviously the words, "conditions," "restrictions" or "limitations" did not refer to the Governor's constitutionally granted power to pardon. There would be no need for the Governor to impose conditions, restrictions or limitations on his own exercise of his constitutional power. Thus, the Governor could place "conditions" upon a pardon or parole; "conditions" that the offender would have to abide by while on parole or pardoned.
In The Proceedings of the Nebraska Constitutional Convention, 1919-1920, Klein Publishing, on pp.1508-10, Convention Delegate Mr. Bryant, an attorney, discussed the problems the public had with some "conditional" pardons. Mr. Bryant also described his participation in this process of obtaining a conditional pardon for one, James Philamalee. Mr. Philamalee received a pardon with the conditions that he, "would pay the costs, and stay within two counties and report to the sheriff of the county... ." Id., p.1510, Thus, "conditions" meant the conditions Mr. Philamalee had to abide by after he was released.
Mr. Bryant also distinguished between the 1920 adding of the phrase as only allowing the "conditions" as the Legislature could "prescribe by law," from the change to the power to parole. Not that the power to issue a pardon or parole could be made conditional by the Legislature, but that the conditions imposed upon those released by pardon or parole be limited to only the conditions authorized by the Legislature. To control the power to pardon and parole the 1920 Convention also adopted a Board of Pardons comprised of the Governor, Attorney General and Secretary of State. Mr. Bryant explained; Id., p. 1510; that while the creation of the Board of Pardons would not remedy conditional pardons, it would be a check upon the Governor's exercise of the power. Thus, Mr. Bryant distinguished the two different purposes for these two different changes.
Therefore, the only "conditions" the 1920 Constitution placed upon the power to parole was the constitutional requirement of a majority vote of the new three member Board and persons convicted of treason or impeached could not be paroled. Consequently, the word "conditions" in Article IV, §13 does not mean "conditions upon the power to parole," but only the "conditions" which the paroled offender must abide by while on parole.
In the 1968 amendment to Article IV, §13, which mandated the creation of the Board of Parole, the same phrase; "under such conditions as may be prescribed by law"; was retained, allowing the Legislature to create the conditions a parolee could be required to abide by while on parole (see, Neb.Rev.Stat. §§83-1,116 & 83-1,117). The phrase "under such conditions as may be prescribed by law" did not change to mean that the Legislature could now place conditions on the Board of Parole's power to parole any offender (except those convicted of treason or impeached). State ex rel. State Railway Comm. v. Ramsey, supra (The powers of the Constitution do not change.)
Therefore, the Nebraska Legislature is not authorized to place "conditions" upon the Board of Parole's constitutionally granted power to parole any offender (except those convicted of treason or impeached). The Legislature cannot impose the condition of obtaining a commutation of a judgment (sentence) before the Board of Parole has a parole eligibility date on which it can exercise its constitutionally granted power to parole any offender.
Also note that the words "restrictions and limitations" were removed from the 1875 Constitution by the 1920 Amendment to Article IV, §13. There is a legal difference between "conditions" and "restrictions and limitations" that was known to the 1920 Convention delegates. See, Laird v. Simms, 147 P. 738 (Arizona 1915) as well as the later Jamison v. Flanner, 228 P. 82 (Kansas 1924). Where the Legislature has not been given the authority to place "restrictions and limitations" on the power to parole, the Legislature cannot say that certain crimes in addition to treason and impeachment are "without parole" eligibility because Article IV, §13 says the Board "shall have power to grant paroles …for any offenses ... except treason and cases of impeachment."
Twice in the past century there were attempts to give the Legislature the power to create such "restrictions and limitations." Both attempts were rejected. In the 1920 Constitutional Convention there were three other proposals regarding the pardoning power in Article V, §13 of the 1875 Constitution. These were Proposals No. 176, No. 194 & No. 204. See, pp.238, 244 & 253; The Nebraska Constitutional Convention 1919-1920, supra. Each of these proposals allowed the Board to impose "restrictions and limitations" on pardons. They also allowed the Legislature to create regulations for the applications for pardons. Each of these proposals was rejected by the Convention in favor of Proposal No. 311 which ultimately became Article IV, §13 in the 1920 Constitution. See, Id., supra, pp. 647-48 & 2689-90.
The second attempt was in the 1967 Legislative Bill introducing the amendment to create a separate Board of Parole. As originally introduced in 1967, LB 561 simply added the phrase, "Until otherwise provided by law…" to the start of the existing Article IV, §13. This would have given the Legislature complete control, not only over the power to parole, but also over the power to grant pardons, reprieves and commutations as well. The Legislature would have been authorized to replace Article IV, §13's grant of powers to the Board of Pardons with statutes that could have placed conditions, restrictions and limitations on each of those powers. The Legislature's Judiciary Committee rejected this sweeping change by amending the Bill before it went to General File on April 5th, 1967. See, Legislative Journal, 1967, pp. 1198-1200. This amended Bill retained the 1920 Constitution's specific phrase, "under such conditions as may be prescribed by law," to define what powers the new Board of Parole would and would not have. Therefore, the current Article IV, §13 also does not grant the Legislature the power to place restrictions and limitations on the Board of Parole's power to parole, nor does it grant the Legislature the power to place "conditions" upon the Board of Parole's power to grant paroles. The Legislature is only authorized to prescribe the conditions a paroled offender must abide by while on parole. Thus, the current Board of Parole's power to parole remains the same as the Board of Pardon's power to parole had been before the 1968 constitutional amendment.
The Legislature was well aware, in the past, that those offenders with life sentences could be paroled without having their life sentences commuted. In 1968, the Board of Pardons paroled Clarence Tvrz (NDCS Inmate #17443) who was serving a life sentence for first degree murder. See, State v. Tvrz, 154 Neb 641, 48 N.W.2d 761 (1951). Mr. Tvrz's life sentence was not commuted by the Board of Pardons until 8 years later on December 21st, 1976. As the Legislature was writing the Bill that would become the new Board of Parole's procedures; Laws 1969, LB 1307; then Attorney General Clarence Meyer (himself a member of the Pardons Board that had paroled Clarence Tvrz) told the Judiciary Committee that a change would have to be made to LB 1307 to provide for "lifetime paroles." As originally offered, LB 1307 had placed a 5 year limit for offenders to be on parole. In the March 20th, 1969, Judiciary Committee hearing Mr. Meyer said:
Those amendments were presented to the Governor, he reviewed them and he agrees with me that these are proper, in his view, and so we submit these for your consideration. The first one is in connection with the definition on page 3 of the bill in sec. 1, "parole term shall mean the time from release on parole to the end of the maximum term, not reduced by institutional good time reductions -- or five years, whichever is shorter." In other words that would testify that no one could be on parole longer than five years. I don't know of any case but one and it is because of that one case that I ask that the five years be stricken from it. We have one man on lifetime parole. I'm afraid if this bill is enacted in this form with that language in there he might be completely out from under our control and I don't think that that particular man should ever be free of full control.
pp. 13-14, Judiciary Committee Hearing, March 20th, 1969.
There was no outcry of horror or astonishment, no wailing or gnashing of teeth from the Legislators; they all knew this was lawful and possible. The Legislator's response was to calmly amend LB 1307 to remove the 5 year limitation on parole to allow these lifetime paroles. Therefore, at that time the Legislature did not intend to eliminate these lifetime paroles.
Furthermore, there is a qualitative difference between the Legislature providing for the calculation of parole eligibility based upon a minimum term of a sentence in Neb.Rev.Stat. §83-1,110 and requiring the Board of Pardons to commute a life sentence before a parole eligibility date can be calculated. This difference is not one of "when," but a difference in "how" which Article IV, §13 does not grant to the Legislature. "How" parole eligibility is determined has been defined in the Constitution. Article IV, §13 says, "shall have the power to grant parole after conviction and judgment.. . ." In Nebraska the judgment in a criminal case is the sentence imposed by the judge. State v. Reeves, 258 Neb 511, 604 N.W.2d 151 (2000). Therefore, Article IV, §13 requires the Legislature to make a parole eligibility date calculable from any lawful sentence and its beginning date.
Under Nebraska law, the parole eligibility date is calculated from the minimum term (defined in §83-170(9)) under §83-1,110(1), or, if there is no minimum term, eligibility begins at the time the sentence is imposed. See, State v. Cadwallader, 230 Neb 881, 434 N.W.2d 506 (1989). Neb.Rev.Stat. §83-1,110 used to explicitly say this. When the statute was first enacted as a part of Laws 1969, LB 1307, §831,110(1) said:
Every committed offender shall be eligible for release on parole upon completion of his minimum term less reductions granted in accordance with this act, or, if there is no minimum, at any time.
Neb.Rev.Stat. §83-1,110(1) (Reissue 1971) (emphasis added)
The phrase, "or, if there is no minimum, at any time," was removed in Laws 1972, LB 1499. Removing the phrase could not eliminate the constitutionally granted power to parole any offender as a result of a judgment because statutes do not override the constitution. See, In re Interest of J.H., 242 Neb 906, 497 N.W.2d 346 (1993) (Statutory provisions do not override constitutional rights); In re Joshua M., 256 Neb 596, 591 N.W.2d 557 (1999). It simply made this fact more difficult to find and understand; kind of like trying to "hide" it.
It has been so well hidden that the Nebraska Supreme Court seems to have forgotten about it. Recently the Court has decided that offenders with "determinate" sentences or sentences with the same minimum and maximum sentence had no parole eligibility. See, e.g., Johnson v. Kenney, 265 Neb 47, 654 N.W.2d 191 (2002). None of these cases considered Article IV, §13's power granted to the Board of Parole or its limitation on the Legislature's power to prescribe punishments. Since it is the Supreme Court's duty not only to determine whether a statute contravenes provisions of the Constitution; Davis v. General Motors Acceptance Corp., 176 Neb 865, 127 N.W.2d 907 (1964); but also to construe and interpret the State Constitution; DeCamp v. State, 256 Neb 892, 594 N.W2d 571 (1999); should the Court decide that a "minimum life" sentence can be imposed upon Mr. Marrs, then the Court must also consider, construe and apply the effect of Article IV, §13 to such a sentence too. The question is will the Court do that; and do it properly?
How can we measure what the Court will do in State v. Marrs? The moral that Animal Farm teaches us is more than just, watch out for pigs with paint buckets. People with life sentences may well be the least deserving of the protections of the Constitution and the Nebraska Supreme Court may have the best intentions for our State. But that is not enough to rewrite the Constitution however they desire it, for all tyrannies begin with both the best of intentions and the indifference of the majority. Perhaps the measure can be found in the words, written decades before Orwell's Animal Farm and etched into our Capital Building: The salvation of the State is watchfulness in the citizen. There may be many citizens watching to see what the Nebraska Supreme Court will do to Mr. Marrs, but how many will notice if the Constitution gets painted over? Salvation it seems, takes more than just watching. For it is what is done to the least of society that is the ultimate measure of corruption. Watching is not enough because the Nebraska Supreme Court speaks and acts for all Nebraska. Each Nebraskan must decide who speaks the truth, history or the current Nebraska Supreme Court. In that decision you will find the meaning of life.