The Other Death Penalty

© 2009 Last Updated: 12/20/2009

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With the conclusion of the 101st Nebraska Legislature on May 29, 2009, Nebraska now has another method of execution in capital cases. Legislative Bill (LB) 36 was introduced by Norfolk Senator Mike Flood, it now makes lethal injection the sole method of execution in the state replacing the electric chair.

Omaha Senator Brenda Council said the problems with the death penalty cannot be addressed by any amendment. "It's inherently arbitrary. It is inherently capricious. It is inherently discriminatory," she said. Senator Council offered an amendment that included portions from her proposed bill, LB 306, which would have abolished the death penalty and replace it with a maximum sentence of life imprisonment without parole (LWOP) and with order of restitution. Senator Council's amendment failed by a vote of 13 to 33.

The death penalty in all its finality is clear, unambiguous, premeditated and once imposed, it is seemingly immediate and absolutely irreversible. But what about the other death penalty - LWOP?

LWOP is publicly touted as the alternative to the death penalty, however, its result is exactly the same - death by attrition. LWOP has become a public mantra by numerous politicians and an unaware and misinformed public. Make no mistake about it, LWOP is absolutely the other death penalty. Here are the results of those lifers that have suffered the ultimate fate of LWOP: Charles McClelland #16657, Jimmie R. Andersen #28934, Robert Record #30637, Lee Beans #30989, Wilfred Nielsen #31801, David Lamb #33901, Con Bradley #38156, Terrance Johnson #42980 and Carolyn Joy #92471.

In a democracy, ignorance of the people is the gateway to unchecked power and tyranny. During this past legislative session numerous senators proclaimed during debates on LBs 36 and 306, that a life sentence in Nebraska is without parole. No matter how many times it might be said, yelled or proclaimed - that's not what the Nebraska Constitution guarantees.

The Nebraska Constitution is in effect, the will of the people, it's not a statute made by senators and signed by the governor, nor is it an interpretation of a statute or constitutional provision by the Nebraska Supreme Court. A constitutional provision has been voted into existence by the people. It's a reflection of how the people choose to govern themselves absent the politicians and the courts being involved. Such was recently the case in California, Iowa and New Hampshire, where the identical issue (same sex marriage) was decided differently at the ballot box. The states of Iowa and New Hampshire allow same sex marriages by law, while California now (via Proposition 8) doesn't allow same sex marriages by law.

The people of Nebraska decided through their vote in 1920, that parole be a right conferred by the constitution. In pertinent part the granting of " … 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,"is a constitutional right. Neb.Const. Art. 4, § 13.

The language used clearly only excludes treason and cases of impeachment from parole eligibility - all other criminal offenses (including homicide) are made eligible for parole. Art. 4, § 13's parole authority has remained unchanged since 1920, so where does anybody infer from its clear language that a life sentence in Nebraska is without parole? When and how did this occur without changing the constitutional provision that grants parole/eligibility to any criminal offense in the state except treason and cases of impeachment?

Why does Art. 4, § 13 get so little or no respect and or compliance with by the very people (government) charged with its execution? In seemingly outright defiance of the constitution, how does any politician or court say, rule or suggest that a life sentence is without parole especially viewed under the blaring light of Art. 4, § 13. Is this a mere lack of understanding of the constitution, or is it something intentional? If intentional, it's a crime. See An Impeachable Offense;

Much of the confusion over whether a lifer is eligible for parole centers around inadequate legislation passed by the Legislature and recent erroneous rulings by the Nebraska Supreme Court. In 2002, the Nebraska Legislature held a special session that dealt with the death penalty on issues stemming out of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). Anyway, unrelated to Ring or the agenda of the special session, the Legislature changed the penalty for a Class IA felony, N.R.S. § 28-105(1), 1st degree murder, by adding the phrase "without parole" after life imprisonment. See 2002. Neb. Laws, LB. 1, 3rd Special Session (November 22, 2002).

Subsequent to the 2002 special session and the change to 28-105(1), numerous judges across Nebraska began sentencing people convicted of 1st degree murder to life imprisonment without parole. This was the first time in Nebraska history that "without parole" was incorporated with life imprisonment for 1st degree murder. Such an incorporation of terms seems to be a clear contravention of parole authority in Art. 4, § 13.

As early as 2003, the Nebraska Supreme Court correctly declared as unconstitutional the "without parole" addition after life imprisonment penalty to 28-105(1), Class IA felony (1st degree murder) .

In case after case, the Nebraska Supreme Court declared that the "without parole" addition after life imprisonment violated the ex post facto provisions of both the federal and state constitution. See U.S. Const. Art. 1, § 10, cl. 1, Neb. Const. Art. 1, § 16, also see, State v. Mata, 272 Neb. 668, 703 NW.2d 448, 479 (2003), State v. Gales, 265 Neb. 598, 630, 658 NW.2d 604, 633 (2003), State v. Conover, 270 Neb. 446, 703 NW.2d 898, 899 (2005), State v. Gunther, 271 Neb. 874, 716 NW.2d 691, 694 (2006), State v. Robinson, 271 Neb. 698, 731, 705 NW.2d 531, 564 (2006) and State v. Rodriquez, 272 Neb. 930, 726 NW.2d 157, 161 (2007). The Nebraska Supreme declare that without parole was an enhancement to life imprisonment because it was not the law during the commission of crimes before its enactment and changing the penalty for Class IA felony was not part of the special session agenda.

To date, if you look at the penalty for Class IA felony (1st degree murder), it still indicates, "life imprisonment without parole." But when did this become the law? As much as some politicians proclaim that "life is without parole," the general assumption is that it is the law. Life imprisonment without parole has never actually become the penalty for 1st degree murder. That's why as recent as just two years ago, State v. Rodriquez, supra., the Nebraska Supreme Court reiterated its early decisions that the correct penalty for a Class IA felony is life imprisonment.

In fact, evidence shows that at least one 1st degree lifer (Clarence Trvz) was paroled for eight years prior to being commuted to a term of years and discharged. Evidence also suggests that at least two other 1st degree lifers (George T. Lee & Darrel F. Parker) were possibly paroled before their sentences were commuted and subsequently discharged from custody. These events also dismiss the notion that a life sentence must be commuted first before a lifer becomes eligible for parole.

In 1986, via LB 1241 N.R.S. § 83-192(9)(e), the Legislature created a requirement that minimum life sentences be commuted prior to lifers being reviewed annually by the Nebraska Board of Parole or whenever they (lifers) were within five years of their earliest parole eligibility date. The current statute is 83-192(1)(f)(v) (Reissue 2008).

Although the language used is ambiguous and relates to parole review procedures for minimum life sentences, is this for 1st degree murder or 2nd degree murder? LB 1241 was the first time the word commute was consolidated with parole reviews and eligibility dates. If this change in law is constitutional, which I don't believe that it is, this statute would represent a violation of the ex post facto provision of both the federal and state constitutions for every lifer sentenced prior to July 16, 1986 (the effective date of LB 1241).

The commute requirement of 83-192(1)(f)(v) for lifers sentenced before its effect date is an enhancement of their sentences that didn't exist during the commission of their crimes. The commute requirement is inapplicable to those life sentences based on the same ex post facto analysis given in Gales, Conover, Mata, etc .... supra. Prior to LB 1241, the laws in effect didn't require a commutation of a life sentence in order to gain a parole eligibility date.

When the Nebraska Supreme Court reversed those life without parole cases, Gales, Conover, etc ... supra., it suggested that there wasn't a problem with the Legislature changing the penalty for a Class IA felony to include "without parole" during a regular session. But it never happened. N.R.S. § 28-105(1) continues to read exactly the way it did when the unconstitutional portion (without parole) was declared void or unenforceable to lifers sentenced before it was changed during the 2002 special session. Because without parole wasn't a part of the sentencing scheme prior to the attempt during the 2002 special session to enhance the life imprisonment penalty for 1st degree murder, it is clear evidence that lifers must have been and are eligible for parole.

I contend that the Nebraska Supreme Court was wrong in suggesting that the Legislature is authorized to dilute, interpret or decide which criminal offenses in the state are eligible for parole. To do so renders the plain language of· Art. 4, § 13 meaningless and subject to the whims and interests brought to bear upon state senators and supreme court judges, thus making a mockery of the peoples' will through their legitimate vote(s).

Buried in a footnote of the current Vol 2 N.R.S. (Reissue 2008), 28-105(1), Class 1A felony, is there any mention that "without parole" after life imprisonment has been deemed unconstitutional. See §2. Miscellaneous citing Gales and Conover. But why hasn't "without parole" simply been removed from the current statute? By leaving it there gives the impression that life imprisonment without parole is the penalty for 1st degree murder.

The Nebraska Supreme Court has made several recent rulings on parole eligibility of lifers. State v. Poindexter, 275 Neb. 863, 750 NW.2d 688 (2008), State v. Moore, 277 Neb. 111, 759 NW.2d 698 (2009) and State v. Marrs, 272 Neb. 573, 723 NW.2d 499 (2006). All of these cases further confuse the issue parole eligibility for lifers.

In both Moore and Marrs, they were sentenced to terms of life to life for Class 1B felonies (2nd degree murder) life minimum and life maximum. The Nebraska Supreme ruled that these were valid sentences by concluding that the minimum life sentence was not excessive. The statutory minimum for 2nd degree murder is 20 years. You do the math, how can life not exceed the statutory minimum?

In Poindexter, he was sentenced to a flat life sentence for 1st degree murder. The Nebraska Supreme Court in his case ruled that his life sentence has a minimum and maximum part (the minimum being life and the maximum being life). Life to life, doesn't that sound like the penalties for both 1st degree murder and 2nd degree murder are identical? The Nebraska Supreme Court went one step further in its analysis of Poindexter, Moore and Marrs, i.e., that under a life to life sentence, a lifer can't become eligible for parole until their sentence has been commuted to a term of years by the Nebraska Board of Pardons.

Poindexter, Moore and Marrs all represent an ongoing effort through both the Legislature and courts to render ineffective the constitutional right to parole eligibility for lifers via the Nebraska Constitution. Art. 4, §13. The Nebraska Supreme Court hasn't determined the parole eligibility status of lifers pursuant to Art 4, § 13, rather it has chosen to deal with the issue through various statutes on the subject. See Poindexter, Moore and Marrs, supra.

The language that creates parole/eligibility in the constitution, "…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," is precise and gives no authority to the Legislature or the Judiciary to eliminate parole/eligibility for any criminal offenses not specifically mentioned. The Legislature is authorized by the constitution to prescribe what conditions a parolee must abide by while on parole (N.R.S. § 83-1,114-117). But the constitution doesn't permit for one of those conditions to be the outright elimination of parole/eligibility.

The Legislature nor the Judiciary can expand the list of criminal offenses beyond treason and cases of impeachment that are made ineligible for parole via the constitution. LWOP is a sentence and or concept that is incongruent with the provisions of Art. 4§ 13.

Currently there are some 3,300+ prisoners on death row across America, however, that number far exceeds 36,000+ prisoners sentenced to death via LWOP. The United States, with 5% of the world's population, has virtually all the world's LWOP prisoners. There are 12 prisoners in the rest of the world serving LWOP for convictions for crimes committed when they were juveniles; there are more than 2,000+ prisoners (juveniles during the commission of their crimes) in the U.S. See The Other Death Penalty Project/P.O. Box 1486/Lancaster, CA 93584;

The issue of juvenile LWOP prisoners will soon be addressed by the U.S. Supreme Court in Joe Sullivan v. State, 987 So 3d 83, Fla.App. 1 Dist., (2008) and Terrance Graham v. State, 982 So. 2d 43, Fla. App. 1 dist., (2009) (homicide cases out of Florida). Hopefully, because the U.S. Supreme Court has already ruled that it is cruel and unusual punishment to sentence juveniles to death by execution (Roper v. Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005), it is hoped that court will follow that same line of logic and determine that LWOP, especially for juveniles, is cruel and unusual punishment and ultimately simply a slower form of death.

Nebraska should take the lead in ending the perception of LWOP sentences, it's not the law of this state and runs contrary to Art. 4 § 13. Senators should be urged to pass legislation in the next session that accurately reflects what the constitution requires, i.e., there are no LWOP sentences in Nebraska.

The Rest of their Lives: Life without Parole for Child Offenders in the U.S.
The Meaning of Life
Parole Eligibility of Lifers?

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