CAN A MINOR INCARCERATED FOR LIFE
EVER GET COMMUTED AND A SECOND CHANCE?


© 2007 www.nebraskapen.org Last Updated: 10/08/07

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Justice often times seems to be an illusive quantity, especially when polarized by politics. This certainly appears to be the case with the Nebraska Board of Pardons regarding lifers seeking the commutation of their life sentences. The Board of Pardons has taken a cookie-cutter, one size fits all approach, even though every case is different and permeated with subtleties, nuances and variances for the same offense. No commutation... Justice is not blind, it peers through the most sun kissed days and gloomiest of nights, it sees through the prism of all the isms in this society.

A BOARD OF PARDONS THAT WON'T CONSIDER COMMUTATIONS

Since 1990, four consecutive Board of Pardons, and still counting, have outright refused to commute a single life sentence - that's seventeen years. What type of justice is this? The Board of Pardons is composed of Governor; Dave Heineman, Attorney General; Jon Bruning and Secretary of State; John Gale.

The authority of the Board of Pardons, as the Nebraska Supreme Court recently reiterated, "has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or no reason at all." State.v.Marrs, 272 Neb. 573, 580, 723 NW2d 499, 505 (2006) also see Nebraska Constitution, Article 4 13. Bruning has accused both Heineman and Gale of playing politics with the commutation of life sentences in an attempt to appear "tough on crime." In 2005, Bruning voted to commute the life sentence of Jeremy Herman. He was the lone proponent, Herman's application for reporters in the room to take down his remarks. "We say we need to be tough on crime. I've been so tough on crime it makes me want to throw up sometimes. How tough on crime can we be," Bruning asked? "This Board used to commute people. Tough guys like (former Governors) Charley Thone and Jim Exon would commute people. We commute none. Why do we even have a Pardons Board?"

THE AUTHORITY OF BOARD OF PAROLE TO PAROLE LIFERS

Is Bruning right? Is the Board of Pardons incapable of commuting life sentences due to politics? Are there other available remedies already existing in the law?

In 1893, parole was first utilized in Nebraska. The power to parole was statutorily granted to the governor through the Legislature. Parole authority was added to the governor's other constitutional powers to grant reprieves, commutations and pardons. This practice continued unchanged for twenty-seven years.

In 1920, two things occurred. First, the power to parole was created and granted through the Nebraska Constitution. Second, the Board of Pardons was created to remit fines and forfeitures and to grant commutations, pardons and paroles. This practice continued unchanged for forty-eight years.

In 1968, Article 4 13 of the Nebraska Constitution was amended and created the Board of Parole. Its five members are appointed -not elected like the three members of the Board of Pardons. More importantly, this change authorized the Board of Parole "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 the state except treason and cases of impeachment." I recently checked with the office of the Governor regarding first degree Lifers paroled during the years between 1893-1920 (the period of the governor's parole authority), and the Board of Pardons regarding the years 1920 - 1968 (the period of the Board of Pardons' parole authority). The Board of Parole Chairwoman, responding for the governor via letter, said, "Our office is unable to assist you in your request for information, as we do not have any records, files or listings of persons paroled between 1893 and 1920."

The Board of Pardons sent me a list entitled, Inmates serving first degree life who have been commuted since 1969 and date they were commuted, paroled and discharged. This list shows that thirty-two former lifers have been commuted since 1969. This list also shows that at least two of the individuals, Hugh Griffith and Ewther Hall were initially sentenced to death row. Three other names on the commute list are of interest. Two names (George T. Lee and Darrel F. Parker) raise a question of whether these individuals were paroled before their sentences were commuted. Lee was commuted on 03-30-71 and Parker on 08-25-70. However, the status of the third person in question, Clarence Trvz, seems quite clear. He was paroled on 11-17-68 and commuted eight years later on 12-21-76. The history and authority of the Board of Parole to grant paroles to lifers is clear and makes good constitutional sense. Remember the 1968 change to Article 4 13 of the Nebraska Constitution created the Board of Parole and removed parole authority from the Board of Pardons and vested that authority with the Board of Parole.

THE LEGISLATURE'S POWER IS LIMITED

In Nebraska, as in other states, the branches of government are divided into three separate entities i.e., legislative, executive and judicial. Generally known as the separation of powers. See Article 2 1. The distribution of powers in part provides, (1) The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this constitution. The power of each department of government is limited by the constitution, which is enacted by the people.

The constitution limits the Legislature from creating any criminal offense without a parole eligibility date, except for treason and cases impeachment. For the Legislature to enact an offense that is without parole, statutorily adds said offense (murder or any determinate sentence) right along side treason and cases of impeachment specifically mentioned in the constitution. The Legislature isn't constitutionally authorized to do that. The Legislature can't enlarge the categories of offenses that are ineligible for parole, which the constitution has restricted to treason and cases of impeachment. Article 4 13. Every criminal offense in the State of Nebraska shall be eligible for parole except those two specifically enumerated offenses named by the constitution.

The Legislature isn't constitutionally authorized to require that a life sentence be commuted first before acquiring a parole eligibility date for that offense. This would violate the distribution of powers by directing one department of government (executive) not to exercise its constitutional authority to grant paroles/parole eligibilities "for any offenses committed against the criminal laws of the state except treason and cases of impeachment." The Legislature can't impose restrictions or impediments upon an executive agency (Board of Parole) not to perform its constitutional duty. That's exactly what has occurred with a statute enacted that requires the commutation of a life sentence before receiving a parole eligibility date. N.R.S. 83-192(f)(v)(1999) provides:

If a committed offender is serving a minimum life sentence, his or her record shall be reviewed during the first year of incarceration and every ten years thereafter until such time as the sentence is commuted. If such sentence is commuted, the committed offender's record shall be reviewed annually when he or she is within five years of his or her earliest parole eligibility date.

What the Legislature has done with 83-192(f)(v) is three things,

(1) violated the distribution of powers by limiting the constitutional authority of an executive agency (Board of Parole) to grant parole/ parole eligibility. This seems to be a judicial power.

(2) statutorily enlarged the constitutional enumerated criminal offenses (treason and cases of impeachment) that are ineligible for parole/parole eligibility by adding murder/life sentence.

(3) created a statutory condition (commutation) for an offense before parole/parole eligibility can attach, which isn't required by the constitution. Commute authority is vested in another executive agency (Board of Pardons) which the Legislature has no authority over. See Otey v. State, 240 Neb. 813, 485 NW2d 153 (1992), State v. Marrs, 272 Neb. 573, 580, 723 NW2d 499, 505 (2006).

The Legislature has no authority to strip an executive agency of its constitutional authority or divert it to another agency. State ex rel., State Railway Comm. v. Ramsey, 151 Neb. 333, 37 NW2d 502 (1949).

There might be some difference of interpretation or ambiguity regarding Article 4 13 and its phrase, "under such conditions as may be prescribed by law," as meaning the Legislature can create conditions that the Board of Parole is not authorized to parole certain criminal offenses. The phrase, "under such conditions as may be provided by Law," can be plainly viewed to mean the "conditions" of parole that "may be provided" by laws created by the Legislature. Such statutes have been enacted that enjoin such "conditions." N.R.S. 83-1,116-117 (1999).

It seems absurd, since it would violate the distribution of powers, for the Legislature to prohibit and forbid the Board of Parole not to grant paroles or create parole eligibilities for the offense of murder. It may make good political sense when trying to curry votes, however it is not in compliance with the Nebraska Constitution. Any ambiguity that may exist with this particular phrase (under such conditions as may be provided by law) seems to be resolved by the fact that lifers have been paroled without having their sentences commuted first. That appears to be the intent of the Nebraska Constitution.

"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 NW2d 151 (2000). Therefore, Article IV, 13 requires the Legislature to make a parole eligibility date calculable from any lawful sentence and its beginning date." The Meaning of Life.

BOARD OF PAROLE IN A BETTER POSITION TO JUDGE CASES

It seems that authorizing the Board of Parole to parole lifers removes the politics, or at least the potential is there for that, because Board of Parole members are not elected officials. They aren't caught up in being elected via their decisions. Board of Parole member, unlike the Board of Pardons, review some case annually, have the opportunity to gauge a person's demeanor, review institutional files/records, have input from case managers, make programming and rehabilitative recommendations, have input from victims and talk directly with correctional staff that interact daily with potential parolees. These things situate the Board of Parole in a far more intimate and informed position to decide a case for parole, thus the 1968 change to Article 4 13 creating the Board of Parole.

The authority to commute sentences and grant paroles are different and vested in separate executive agencies (pardons & parole). The one thing common between commutations and paroles is that neither are absolute or guaranteed. From 1969 to 1990, the Board of Pardons exercised its commute authority only thirty-two times for first degree murder, and zero times since 1990 for the same category. Likewise, the Board of Parole doesn't grant a parole to every person that is eligible. Based on criteria set forth by Nebraska statutes, the Board of Parole can and does routinely deny paroles to persons eligible for release. A commutation is a grant of mercy by the Board of Pardons. Mercy is lenient or compassionate treatment shown to a prisoner. Parole is a conditional release of a prisoner serving an indeterminate or unexpired sentence. A parole is a less stringent form of custody - but custody none the less. The Board of Parole also routinely revokes parole when the conditions agreed to by a parolee are not fulfilled. Commutations and paroles are nothing new. The history of both in Nebraska is that they are now dispensed by separate boards. The authority to grant paroles remains the same since it was created. Today the Board of Parole has the only constitution authority to grant paroles "for any offenses... except treason and cases of impeachment."

In 1968, the Board of Pardons paroled Clarence Trvz #17443, he was serving a first degree life sentence for murder. Trvz's sentence wasn't commuted first and didn't need to be. The politics of today seems to suggest an opposite approach absent any constitutional authority and or support for that view. Trvz's parole makes perfectly good constitutional sense. You can't revoke a commutation, but you can revoke a parole. Instances may occur with a parolee that would warrant revocation. What is the revocation status of former lifers that were paroled? Statistics show they have gone on to be law abiding citizens. The commute list indicates that only two out of thirty-two have had their parole revoked. This recidivism rate is significantly less than any other category of criminal offense.

REVIEW THE CASES OF MINORS INCARCERATED FOR LIFE

The U.S. Supreme Court ruled that execution of individuals who were under 18 years of age at the time of their capital crimes is prohibited by the Eighth and Fourteenth Amendments. Roper v.Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005). Before this decision the United States was listed with Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China that had executed minors since 1990, since then each of these countries has either abolished capital punishment for minors or made public denials of the practice. The State of Nebraska was in the vanguard on this issue, ". . . the death penalty shall not be imposed upon any person who was under the age of eighteen years at the time of the commission of the crime." N.R.S. 28-105.01 (originally enacted 1982). The line of logic eloquently expressed in the majority opinion in Roper, and implemented in Nebraska since 1982, is germane to this discussion.

Roper ultimately expresses the idea that it is unjust and inhumane for the United States to execute its adolescents (juveniles/minors). Roper details a list of rights denied to minors but allowed to adults. See Appendix A-D in Roper. Age limits have been set for minors that deny them such rights as possession of tobacco, possession of adult material (porn), firearm possession, alcohol consumption, voting, marriage, driving, jury service, military service, etc.. .Why? Society realizes that a minor is not mature enough or not yet an adult, and therefore lacks the soundness of mind and subsequently the proper judgement to exercise the rights of an adult. Minors should be protected. "Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage." (Roper at 1195, citing Eddings v. Oklahoma.) Roper has brought nationwide uniformity to the issue of who's eligible for the death penalty because the states were all over the place in terms of an age eligibility - some states had no age while other states differed. Yes, there should be some sense of uniformity. But that uniformity shouldn't take the form of outright denials of paroles or commutations for lifers.

The prevailing circumstance is that juveniles have less control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 014 (2003). "As legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting." Roper at 1195. Also see E. Erikson, Identity: Youth and Crisis (1968) These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct s not as morally reprehensible as that of an adult." Roper at 1195, citing Thompson v. Oklahoma.

As Roper points out, minors that commit the offense of murder aren't adults and shouldn't be subject to the ultimate penalty of execution. But to partially quote Shakespeare, "a rose by any other name.. ." Life for a minor may accomplish the same thing. ". . .general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.. ." Roper at 1195 also sees Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992) ("adolescents are overrepresented statistically in virtually every category of reckless behavior."). Time? How much time should a person sentenced to life as a minor serve? Obviously it would be inappropriate to clap the minor on the hand and send them off. But what about those cases where a minor has been sentenced to life, been rehabilitated, and have now grown into adulthood. That person is essentially not the same person they were ten, twenty or thirty years ago. Is it just to continue to judge and punish them as adults for an offense that was committed as a minor?

All reasonableness seems to dissipate like smoke blown by a gale when a minor commits the act of homicide. Minutes prior to the act, the minor wasn't treated as an adult because the minor wasn't an adult - the person was a minor. The act of homicide doesn't increase the maturation period of a minor to light speed, thereby instantly transforming said minor into adulthood.

Roper clearly advances the idea that, due to minors' underdevelopment and lack of maturity, minors can't be executed under the age of 18 years old. To do so would be unjust, inhumane, uncivilized and barbaric. It seems logical to extend that concept to minors who were under the age of eighteen years old when their crimes were committed and incarcerated for life. Is that not unjust, inhumane, uncivilized and barbaric for the reasons articulated in Roper? These types of cases should get a fresh look at for paroles and commutations.

OVERVIEW

Homicide is a serious offense, even when committed by a minor. The pain, suffering and loss to the victim(s) and their family shouldn't be diminished or forgotten, they have and continue to suffer a great loss. This discussion in no way is meant to do that.

ADDENDUM

On July 9, 2007, the Board of Pardons held a commutation hearing for first degree lifer Reginald Bennett - in a 2 to 1 decision his commutation request was denied. Governor Heineman and Attorney General Bruning voted against commuting Bennett's life sentence.

"If we open the gate, it is going to be very difficult to say no to anyone. So do we want to open the gate?" U.S. Senate candidate Bruning said alluding to the obscure notion that approving one commutation would open a flood gate for the 200 people in Nebraska's prison system with life sentences. The flood gate hasn't been open since 1969, only thirty-two lifers have been commuted during that time period. That's not a flood, it's more like an Antarctic trickle. There's no reason to assume that that fact would change. The 200 Lifers in Nebraska's prison system are at various stages of their incarceration, some are serving their first year, while others are serving their fortieth plus year. The Board of Parole doesn't parole every eligible person, and the Board of Pardons hasn't commuted every Lifer requesting a commutation.

The recent catch phrase, "life without parole," at least in the state of Nebraska is a statutory creation. Life without parole has never been part of the intrinsic scheme of the constitution. All attempts to mantra this phrase into our collective psyche must fail and will have Ex Post Facto implications. During the 2002 legislative special session, senators tried to sneak "without parole" into the class IA felony penalty (life imprisonment without parole). See N.R.S. 28-105(1) (2005). This was unauthorized and subsequently deemed unconstitutional. State v. Conover, 270 Neb. 446, 452, 703 NW2d 898, 904 (2005) and State v. Gale, 265 Neb. 598, 627, 658 NW2d 604, 626 (2003).

N.R.S. 28-105(1) can't override Article 4 13 of the constitution Even if 28-105(1) is constitutional, it's not retroactive and can only be applied to lifers sentenced after the legislative change authorizing life imprisonment without parole in 2002. Every class IA felony life sentence prior to that time was intended to be eligible for parole.

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