The Nebraska Supreme Court rendered its decision in the second degree murder case of State v. Marrs on November 9th, 2006. State v. Marrs, 272 Neb 573 (2006). Judicial activism continues to be the ruling mindset. The Court made two significant errors in order to reach a result that would look good in the newspapers. Not only has this Court disrespected the Constitution of the People of the State of Nebraska but they have also stolen the power of the legislature as well. With a Legislature almost half filled with rookies (thanks to term limits) the Court must feel that no one will notice or do anything about stealing the Legislature's powers.

James D. Marrs pled guilty to the Class IB felony of second degree murder in Saunders County. When it came time to sentence Marrs, the judge imposed a minimum sentence of life imprisonment and a maximum sentence of life imprisonment. The establishment media dutifully propagandized this as a sentence of life imprisonment "without parole." (See, Lincoln Journal Star, 1/6/06 and 11/11/06; Omaha World Herald, 11/10/06 and Editorial on 11/12/06.) The main issues on Marrs' appeal was whether the sentence was erroneous because of the minimum sentence of life imprisonment and whether such a sentence usurped the constitutional power of the Board of Parole.

The Court's first significant error was their interpretation of the sentencing statute. The Marrs Court has ruled that a life sentence is a term of years. Years ago, when a court imposed a life sentence for the Class IB felony of second degree murder, it could not impose a minimum sentence. See, State v. Secret, 246 Neb 1002, 524 N.W.2d 551 (1994). The minimum sentence automatically became the minimum provided by law. Beginning July 1st, 1998 the sentencing statute allows a judge to impose a minimum sentence with a maximum sentence of life imprisonment. Neb.Rev.Stat. §29-2204 (Cumm.Supp. 2004) says:

Except where a term of life is required by law, in imposing an indeterminate sentence upon an offender the court shall:
...
(A) Fix the minimum and maximum limits of the sentence to be served within the limits provided by law for any class of felony other than a Class IV felony, except that when a maximum limit of life is imposed by the court for a Class IB felony, the minimum limit may be any term of years not less than the statutory mandatory minimum....

This statute requires the sentencing court to fix the limits of the sentence "within the limits provided by law." The statute requires that where a maximum sentence of life is imposed for a Class IB felony (which is what Marrs got) the minimum sentence "may be any term of years. . . ." The key phrase there is "term of years." The Legislature commanded the sentencing judge who wants to impose a minimum sentence (for a Class lB felony with a maximum sentence of life) to impose a "term of years." But the Court ruled that Marrs' minimum sentence of life imprisonment met the requirements of the statute. Thus, according to the Marrs Court, a life sentence must now be a "term of years."

Good News and Bad News

This is a significant change in Nebraska law. Previously in Nebraska, a sentence of life imprisonment was not a term of years. See, State v. Lynch, 215 Neb 528, 537, 340 N.W.2d 128, 134 (1983). Since the Legislature is presumed to know the law as decided in Lynch, it would seem obvious that the Legislature did not intend to give sentencing judges the power to impose a minimum sentence of life imprisonment for the Class lB felony of second degree murder.

The Nebraska Supreme Court has simply stolen the power to define what punishments can be meted out for a crime. Both the State and Federal constitutions limit that power to the legislative branch.

Will the Legislature respond to the Court's theft of their powers. There are two reasons to believe they will not. As I said before the current Legislature is half filled with rookies who very likely have no idea this has even happened. Furthermore, the lawyers in the legislature, who ought to know the law and understand what has happened, are forbidden by their Code of Ethics from criticizing the Supreme Court's opinions. (Remember Ernie Chambers going after Don Stenberg for criticizing the Supreme Court's "Malice" decisions. See, Omaha World Herald, 8/20/96) This demonstrates the conflict of interest lawyers have when they are allowed to be legislators.

On the other hand, you can't imagine how tickled all the convicts serving life sentences for first degree murder are to hear that their life sentences are just a "term of years." If a life sentence is a "term of years" then just how many years is it? The Court's little twist of the phrase considerably changes the legal landscape in favor of those with life sentences without minimum sentences. That means they all have to have a mandatory discharge date and must be released after serving half that "term of years" (counting good time credits). Is that what the Legislature intended? We will see. There is already an action in the District Court of Lancaster County that argues this and parole eligibility for lifers; stay tuned.

A Bigger Can of Worms

The judicial activism of the Nebraska Supreme Court continues to make a mess of Nebraska law on sentencing. It will only get more muddled if the Court continues to change it piecemeal. The constitution guarantees a separation of powers that only allows the Legislature to define crimes and punishments. The Legislature makes these decisions in public proceedings so that everyone can have there say and then reach a consensus rather than making decisions behind closed doors, like the Court. When the Legislature says a "term of years" must be a fixed number, so be it. The Courts should stay out of this business and simply follow the statutes set out by the Legislature. Unless a statute is unconstitutional the Court has no authority or business changing the meaning of sentencing laws.

It's The Constitution, Stupid

The Court's second mistake was to resort to subterfuge to distort the meaning of Nebraska's Constitution. The Court did not attempt to determine the original intent behind Article IV, §13 of the Nebraska Constitution which creates the Parole Board's power. In order to construe the meaning of the constitution it must first be shown that the language of the constitution is ambiguous. Otherwise, the Court simply takes the plain language of the constitution as meaning what it says.

The Legislature shall provide by law for the establishment of a Board of Parole. 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.

The Court then recites Neb.Rev.Stat. §83-192(1)(f)(v) which sets the Board's review schedule of offenders serving minimum life sentences "until such time as the sentence is commuted." The Court goes on to say the Board of Pardons has discretion to grant or deny a commutation and then reaches the logical but erroneous conclusion that a minimum life sentence does not usurp the power of the Board of Parole. The Court decides the Board of Parole would have the power to parole Marrs after his conviction, judgment and commutation.

The Court erred in not finding the phrase, "under such conditions as may be prescribed by law," ambiguous. Without specifically saying what they were doing, the Court interpreted that phrase as meaning the Legislature could create conditions under which the Board of Parole would not have the power to parole at some point after that offender's conviction and judgment. But, the "conditions" that may be prescribed by law are only the "conditions" an offender has to abide by while released on parole. The Legislature set these "conditions" out in Neb.Rev.Stat. §§83-1,116 & 83-1,117. The ambiguity of the phrase is between the two meanings of "conditions." Conditions on the Board's power to parole or conditions that offenders must abide by while released on parole. See, The Meaning of Life.

The Court knew there was an ambiguity in the language of Article IV, §13 and they ignored it. Marrs' attorney failed to argue that this ambiguity exists in the language of Article IV, §13. The Attorney's brief to the Court did not even recite the language of Article IV, §13. However, two NSP inmates requested the Court allow them to file an Amicus Curiae (friend of the Court) brief and their brief did describe this ambiguity, as well as the original intent of the framers of Article IV, §13. But the Court refused to allow the Amicus Brief and struck it from their records on July 14th, 2006, a month after it was filed. That is the Nebraska Supreme Court's subterfuge. So the Nebraska Supreme Court rewrote the Nebraska Constitution because a member of the Bar Association failed to say the magic words. Instead of interpreting the Constitution as it was originally intended and written they simply rewrote it to suit their desires. That is judicial activism at its most obvious.

If the judges on the Nebraska Supreme Court want to change the Constitution then they should use the proper procedure to put that change to the voters of this State. To do less destroys the democracy and freedom we have been told to believe in.

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. George Washington's Farewell Address.

Big Consequences For Little Thinking

Decisions like this have consequences well beyond Nebraska's prisons and Courts. If this is the way American democracy really works it is no wonder we can't sell it in Iraq. Even the Iraqi people know it is easier to deal with one despot than seven, and a secret society they control. When American democracy looks like the winners of the elections get to do whatever they want reasonable people are not going to want their lives at risk that way. The Sunni won't support such a system when they know they are outnumbered by Shiite voters. If American democracy actually worked as, and projected the image of, a system in which nobody gets everything they want, people all over the world would respect having a constitution which protects a minority's rights from violation by a majority. Too bad people won't see America that way by watching the Nebraska Supreme Court.