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February 8, 2008

The Nebraska Supreme Court finds electrocution unconstitutional

As detailed in this SCOTUSblog post, the Nebraska Supreme Court ruled today that electrocution is cruel and unusual punishment.  Here are the basics from SCOTUSblog:

The Supreme Court of Nebraska — the last state to allow the death penalty to be carried out only by electrocution — on Friday struck down that method, relying on the state's constitution. The 6-1 ruling, because it is based solely on state law, would not be reviewed by the U.S. Supreme Court.  The state court's 69-page majority opinion and 17-page dissent can be found at this link.  The decision came in the case of State v. Mata (S-05-1268).

February 8, 2008 at 12:58 PM | Permalink


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Nebraska is always a fun state to watch since it has a unicameral legislature.

Hopefully, if they switch to lethal injection, they will give the media full access to the killing ritual and pipe it (via the internet) into schools and post it to Youtube, so the voters can truly decide if killing is as kewel as the legislators tell them it is.

Posted by: S.cotus | Feb 8, 2008 2:19:25 PM

Fascinating opinion. Bravo to the fierce independence and lion-hearted courage of Nebraska Supreme Court majority.

Posted by: Michael Levine | Feb 8, 2008 2:26:41 PM

The state court commented: "Obviously, we cannot, under the U.S. Constitution, declare that electrocution violates its cruel and unusual punishment provision because the U.S. Supreme Court has held otherwise.”

Well, the state court was wrong. The rule that an inferior court cannot decide that a Supreme Court precedent is no longer because it was undermined by subsequent precedents does not disallow a court from deciding that contemporary standards of decency have changed for eighth amendment purposes. SCOTUS judges are not prophets, and no precedent on what contemporary standards of decency are at one time can be fairly read to encompass all future times. Although Justice Scalia’s dissent in Roper seems to equate the two (see part IV of the dissent), that dissent was joied only by two other justices, and at the very least, the majority of five seems to have silently acquiesed to the Missouri Supreme Court’s view that an 8th amendment precedent may be deemed by a state court at a later date to be no longer applicable.

More thoughts on the Nebraska decision:

It isn’t entirely clear that the decision is cert-proof. The chief justice makes a good argument in part I-C of his dissent that the decision didn’t really rest on an independent an adequate state ground under Long . I need not rehash his case here, since the argument found there is very clear.
Nonetheless, assuming that Baze ends up leaving a lot of room for states to continue lethal injections, I doubt the court will grant cert here, given Nebraska’s already isolated status in reatining only the electric chair as a method of execution, the fact that the court majority officialy rested its decision only in the state constitution, and the fact that Nebraska’s legislature already was seriously considering a proposal to eliminate the death penalty which may be more likely to come about now that the legislature is forced to take action in any event with the state left with no lawful method of execution.

Much of both the majority and dissent’s opinion is open to critique. I think that the dissent did a good job pointing out the inherent contradiction of maintaining that the cruel and unusual punishment clause of the Nebraska constitution guarantees no more than the federal constitution, maintaining (erroneously) that the court has no power to rule that electrocution violates the federal constitution, and to complete the syllogism, concluding that the electrocution violates the state constitution!

But the dissent is no more immune to incoherencies than the majority.

First of all, the dissent steadfastly maintains that “It should be indisputable that either the Nebraska Constitution is a mirror of the Eighth Amendment, in which case U.S. Supreme Court precedent is conclusive, or that the Nebraska Constitution requires more than the Eighth Amendment, in which case this court would not be bound by U.S. Supreme Court case law.” (emphasis added).

Indeed. Presumably this way of thinking is what underlies the previous Nebraska cases insisting that the state’s cruel and unusual punishment clause guarantees no more than the federal constitution’s. But the argument that the dissent says should be “indisputable” is fundamentally flawed. Assuming arguendo that the people ratifying the state constitutional provision understood it to guarantee the same as the federal provision, it is more than plausible to conceive that the people expected their own supreme court to decide the matter of what was historically meant by the term as understood by the federal framers rather than to cede jurisdiction to decide that question to some other body, much less a federal court sitting in Washington. There is no evidence that members of SCOTUS are any more qualified than members of Nebraska’s supreme court to determine the meaning of the federal provision. While Nebraska must bow to a contrary SCOTUS understanding of the federal constitution under the supremacy clause, it certainly may disagree with it and say “Look. We know you folks at SCOTUS botched your interpetation of the eighth amendment. While we must follow it when deciding a federal question, we’re going to substitute our superior legal/historical judgement for purposes of interpreting our state’s cruel and unusual punishment provision, which tracks the real meaning of the eighth amnedment, not the false one conjured up in Washington.”

Furthermore, the dissent suffers from its own contradiction. The Chief Justice chides the majority for not being consistent with precedent that requires that it intepret the state’s cruel and unusual punishment provision in light of federal precedent, but then spends Part III of his opinion attacking the majority for using the “evolving standards of decency” test, more or less prferring Justice Scalia’s approach in his Roper dissent, and concludes by suggesting the abandonment of the test for purposes of intpreting the state constitution while maintaining it for the federal as long as it is forced to do so by SCOTUS doctrine. But he doesn’t explain how his test would do any less to unsettle Nebraska law more than that of the majority’s, as the test he advocates in dissent similarly appears to abandon longstanding Nebraska precedent requiring intepretation of the state cruel and unusual punishment provision to track the federal.

Cross-posted from my comments at SCOTUSblog.

Posted by: Jacob Berlove | Feb 8, 2008 2:41:22 PM

Fascinating opinion. I also think you hit the nail on the head with adequacy of state grounds, Jacob. As the majority notes, no one would be able to challenge electrocution, given that this is the only state with this method and the problem of waiver. I think this decision is correct on the merits, but the dissent has some pretty good points (and the inconsistency on Roper IS problematic). I love your analysis, Jacob. I'm kind of surprised this decision hasn't provoked more debate or news. Goes to show that we've moved on when it comes to method.

As an aside, I interviewed with Justice Gerrard for a clerkship position in December. Didn't get it, but we even talked about blogging. Great guy. I'm sure he knows about your site, Prof. Berman.

Posted by: Alec | Feb 11, 2008 12:57:03 AM

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