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May 3, 2013

Nebraska legislature sends "Miller fix" bill to governor

As reported in this local article, headlined "Lawmakers pass new sentencing limits for juveniles," a bill responsive to new Eighth Amendment doctrine which modifies the sentencing options for young killers has been passed by Nebraska's legislature.  Here are the details:

With the bill (LB44), juveniles could be sentenced to a minimum 40 years to life, with eligibility for parole after 20 years. Judges could continue to use discretion on life sentences for young people who commit first-degree murder.  And they could sentence a youth to more than the minimum.

The bill grew out of the state's need to act on a June U.S. Supreme Court ruling that indicated states must provide some meaningful opportunity for release based upon demonstrated maturity and rehabilitation.  The courts would have to consider mitigating factors in sentencing, such as age, maturity and home environment, including previous abuse of the juvenile.

LB44 passed final reading Thursday on a 38-1 vote.  Lincoln Sen. Danielle Conrad was the lone vote against it. "I just felt like the mandatory minimums were too extensive, particularly when we are talking about juveniles," she said.

But there are good aspects of the bill, Conrad said.  "And I appreciate the hard work and compromise that the committee and the sponsors and other members diligently worked on."...

The bill doesn't address retroactive action for those inmates who committed their crimes as juveniles and are serving life sentences.  Judiciary Committee Chairman Brad Ashford has said the courts would have to address that.  If signed by the governor, those men and women serving mandatory life sentences could file requests to have their sentences reviewed.

I have plans this summer to write an article explaining why I think, both as a matter of law and as a matter of policy, all significant changes to sentencing rules and procedures ought to be presumptively retroactive rather than presumptively non-retroactive (subject to constitutional limits/problems). Consequently, I think court should presume retroactivity in a setting like this one when it appears a legislature has opted not to address whether a new sentencing statute should be retroactive and has punted the issue to the courts to fill in this legislative gap.

May 3, 2013 at 09:35 AM | Permalink


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