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November 28, 2012

Controversy over plans by Nebraska parole board to address Miller via commutations

This lengthy local article from Nebraska, headlined "Pardon Board's plan to resentence 27 inmates draws chorus of objections," reports on the controversy in the Cornhusker State over a notable plan to deal with juvenile LWOP sentences rendered unconstitutional by the Supreme Court's recent Miller ruling. Here are the interesting details:

Prosecutors, defense lawyers and even some victims' families are balking at a plan by the Nebraska Pardons Board to give new sentences to 27 inmates who received life sentences as juveniles.

One advocate questions whether the Pardons Board — made up of the governor, attorney general and secretary of state — is trying to do a “run” around a recent U.S. Supreme Court ruling that forbids states from imposing automatic life terms on juveniles, even those convicted of murder. A long-serving defense lawyer says he will most likely seek a court injunction to block the Pardons Board from acting....

The Nebraska Supreme Court has yet to rule on appeals challenging Nebraska's mandatory life sentences for juvenile murderers. The Legislature plans to spend part of next session hammering out an alternative sentencing law for such juveniles.

In July, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 people to life sentences that allow parole only after 60 years in prison. Branstad said he acted to keep the prisoners from being resentenced, possibly to more lenient terms, in the wake of the U.S. Supreme Court ruling.

None of the Nebraska Pardons Board members — Gov. Dave Heineman, Attorney General Jon Bruning and Secretary of State John Gale — granted interviews requested Tuesday by The World-Herald. The board will meet next week to hold hearings on the cases, all but one involving a person convicted of murder. Gale said earlier this month that it was more expedient for the Pardons Board to commute the sentences of the inmates rather than have them reopened in court....

Defense lawyers argue that commuting the sentences to 50 years or more will all but ensure that their clients remain in prison for the rest of their lives. Prosecutors question whether such hearings would accomplish anything — saying they believe prisoners would still have the right to file further court challenges to any term given by the Pardons Board.

Douglas County Public Defender Tom Riley, the lawyer who said he is likely to ask a court to block the Pardons Board hearings, said his office has represented at least a dozen of the affected prisoners. Riley said Bruning indicated to him that after the hearings, the Pardons Board would place the prisoners into one of three categories based on culpability and other factors. He said he was told the prisoners' minimum sentences would be 50 calendar years. Two other attorneys said they heard the same plan. Riley called that the “equivalent of a life sentence.”...

Douglas County Attorney Don Kleine said the Pardons Board's action, “however well-intended, is premature.” Kleine said he wants the hearings delayed until the Nebraska Supreme Court and the Legislature have had a chance to act. He said the Nebraska County Attorneys Association is working with state senators on drafting new sentencing guidelines for juvenile killers.

Both Kleine and Lancaster County Attorney Joe Kelly said the Pardons Board did not contact them before they learned of the board's plan eight days ago. Both were scrambling to contact victims' families. Kleine's office handled 18 of the 27 cases. Kelly's office handled two.

Both prosecutors doubted that the hearings would prevent prisoners from seeking new sentencing hearings before a judge. That might mean victims' families would face the prospect of having to testify at multiple hearings....

The decision to hold hearings came just a few weeks after one of Bruning's assistant attorneys general argued to the Nebraska Supreme Court that the U.S. Supreme Court ruling should not be applied retroactively. That argument has yet to be ruled upon.

Several of the inmates listed on the Pardons Board agenda have not applied for commutation, according to Riley. He said such an application is required under state law. “That's one of the red flags that tells me that this hasn't been thought through very deeply,” he said.

November 28, 2012 at 11:40 PM | Permalink

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