| © 2006 www.nebraskapen.org | Last Updated: 3/07/2008 |
Mars is the 4th and conspicuous red planet in this solar system. Its location in outer space is important to this discussion, since it appears to be where part of a recent Nebraska Supreme Court decision seems to have emanated. Sometimes decisions made by the court, like the distance between Earth and Mars, looks inconsequential due to their remoteness and because they don't directly affect us.
In 2006 the Nebraska Supreme Court held that a sentence of minimum life to maximum life for 2nd degree murder (Class 1B felony N.R.S. § 28-105(1)(Cum.Sup.2004) and N.R.S. § 28-304(2)(Reissue 1995)) was a lawful sentence. State v. Marrs, 272 Neb. 573, 723 NW2d 499 (2006). Because the court has made the decision- it's now the law. But does it make sense? Various obnoxious legal decisions have been made in spite of the fact of being the law, the decision(s) didn't make sense- slavery immediately comes to mind.
The Marrs decision should have people baffled. How did the court reach such a conclusion? A Class 1B felony is an indeterminate sentence- it has a minimum part and a maximum part. The statutory minimum is 20 years and the maximum is life. Not less than 20 years and no more than life. A sentence between 20 years to life would be a lawful sentence. Marrs received a sentence of life to life.
Marrs, I believe, rightfully argued on appeal that his minimum sentence was excessive, because life exceeds the 20 year minimum. "…the minimum limit may be any term of years not less than the statutory mandatory minimum." N.R.S. § 29-2204 (1)(ii)(A) (Reissue 2006). Marrs' sentence is excessive for two reasons, (1) life is not a term of years as specified by statute and therefore it exceeds 20 years, and (2) the minimum life could be construed as nullifying the maximum life portion of the sentence. Via the Marrs decision, it seems that a person could be sentenced to a "minimum life" to a maximum 50 years." How bizarre is that?
This is reminiscent of the malice issue years ago with 2nd degree murder. Back then, the elements of manslaughter and 2nd degree murder essentially read the same. Malice was not included in the elements of 2nd degree murder. You had two different offenses that were elementally identical. Jurors were confused and should have been. What difference would it make to find a person guilty of the more severe offense? The difference was a maximum 20 years for manslaughter and life for 2nd degree murder - a substantial difference. Anyway, the Nebraska Supreme Court had to straighten that mess out. The Marrs decision potentially poses the same situation in theory. What difference will it make to a juror to find a person guilty of 1st degree murder or 2nd degree murder, esp., if the ultimate sentence is the same: life?
Life to life will be construed by the Nebraska Department of Correctional Services (NDCS) and the Nebraska Board of Parole as life. The indeterminate nature of 2nd degree murder (20 to life) is different than the determinate nature of 1st degree murder (life). As far as the NDCS and board of parole is concerned, life to life is life. You would think making a distinction between life to life (2nd degree) and life (1st degree) would be easy. Not as easy as you think it should be.
N.R.S. § 83-192(1)(f)(v)(Reissue 2004) sets out the parole review and parole eligibility date schedule only "if a committed offender is serving a minimum life sentence..." This seems to only apply to 2nd degree murder because it potentially or according to the Marrs decision, is the only type of life sentence with a minimum. The NDCS and board of parole currently review all 1st and 2nd degree murder cases by this statute. There's no clear and definitive statement in the statute as to when (how many years) parole eligibility is triggered even for 2nd degree murder.
The vagueness of § 83-192(1)(f)(v) combined with the Marrs decision creates a ball of confusion. It's a mess just like the malice issue was, it's a mess for a judge, jury, NDCS, board of parole and esp., for anyone sentenced to life to life or life.
There's another fundamental question, or may be just the most confusing question, raised by the Marrs decision. Marrs further argued that his life to life sentence essentially deprives the board of parole from granting him a parole. However, the Nebraska Supreme Court stated, ". . .The minimum life sentence imposed upon Marrs does not itself restrict or usurp any power of the Board of Parole as defined in the constitution or parole eligibility statutes. Marrs' constitutional argument is without merit." Marrs at 580/505, supra. Why? We don't know because the Nebraska Supreme Court didn't explain why. The Nebraska Supreme Court should have clearly expressed how it reached this issue.
Marrs argued that because N.R.S. § 83-1,110(1)(Cum. Supp. 2004) provides that "...every committed offender shall be eligible of parole when the offender has served one-half the minimum term of his or her sentence... ," that his minimum life sentence makes him ineligible for parole. The court found this argument to be without merit. I believe the court is correct. What first seems contradictory is very clear, although not fully stated. I will admit that the Marrs decision might be subject to more than one interpretation.
Marrs might be assuming, erroneously, that a person can't be paroled while serving a life sentence. This is definitely the misunderstanding of the general public, the idea among many politicians and what their spin doctors have repeatedly spewed into the media upon every opportunity. The board of parole claims that the Legislature has required that a life sentence be commuted first prior to even obtaining a parole eligibility date. N.R.S. § 83-192(1)(f)(v)(Reissue 2006).
I contend that this statute, at least its commutation requirement is unconstitutional. The Legislature can't enact a provision that abrogates a right conferred by the Nebraska Constitution. The Legislature may legislate upon any subject not inhibited by the constitution. It is the constitution that inhibits the Legislature from requiring a commutation in order to obtain parole eligibility. Nebraska Constitution Article 4, § 13 and State ex rel.,Stenberg v. Moore, 249 Neb. 589, 595, 544 NW2d 344, 349 (1996).
One final remark on Art. 4, § 13, in every 1st degree murder appeal before the Nebraska Supreme Court between 2003 to 2007, where life imprisonment without parole was imposed as a sentence pursuant to N.R.S. §28-105 (Reissue 2006), every one of these cases were overturned citing that the "without parole" portion of life imprisonment is unconstitutional. See State v. Conover, 270 Neb. 446, 703 NW2d 898 (2005) and State v. Gales, 265 Neb. 598. 658 NW2d 604 (2003) - at last count there are about seven similar decisions to these cases.
The Court's proposition is correct as to the unconstitutionality of "without parole." However, the one thing the court has failed to do with each opportunity presented, is to specifically address why Art. 4, § 13 makes life imprisonment without parole unconstitutional. Above all other reasons already cited by the court on this issue - it seems that Art. 4, § 13 should have been cited first and foremost because it is the fountainhead from which the right of parole is vested.
"...The minimum life sentence imposed upon Marrs does not itself restrict or usurp any power of the Board of Parole as defined in the constitution or parole eligibility statutes…" emphasis added. There's only one view to conclude from this precise wording, i.e., the constitutional right to parole, even for a lifer, is not disturbed or diminished by a life sentence or any current statute. According to Article 4, § 13, any offenses committed against the criminal laws of this state except treason and cases of impeachment, are eligible for parole
The Legislature has not clearly defined where eligibility begins for a life sentence - 25 years or whatever. What the Legislature can't say is that a lifer never becomes eligible for parole until said sentence is commuted. That's tantamount to stripping parole eligibility away via legislation. A commutation is not required by the constitution to obtain parole eligibility - parole eligibility occurs directly "after conviction and judgment." The Legislature does not control commutation authority, the board of pardons does. The constitutional grant of parole calls into question why lifers don't have parole eligibility dates - they clearly should. The same authority equally calls into question Nebraska's entire determinate or flat sentence notion.
Under flat sentences, a person jams (completes) their sentence without ever becoming eligible for 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. . ." Art. 4, § 13. This certainly includes all offenses (determinate or otherwise).
History bears witness to the fact that lifers have been paroled. Clarence Trvz, for sure, was paroled on a 1st degree murder sentence. There are possibly two other lifers that were paroled too, Darrel F. Parker and George T. Lee? How is this possible? By utilizing the constitutional authority of Article 4, § 13 that has existed unchanged since 1920. It remains so today. So is Marrs eligible for parole? The short answer is, yes. Marrs is eligible for parole on his 2nd degree murder life to life sentence because the constitution confers that right to him.
Pardons and Life Sentences for Minors
Malice In Wonderland -
Don Stenberg 30 Creighton.L.Rev. 15 (1996)
The Second Degree Murder Doctrine in Nebraska -
Richard E. Shugrue 30 Creighton.L.Rev. 29 (1996)