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December 5, 2017

New lawsuit claims Nebraska's death penalty repeal, before voter capital punishment preservation by initiative, precludes execution of already condemned

As reported in this local article, headlined "ACLU of Nebraska sues to block executions, says Ricketts overstepped in referendum process," a notable advocacy group has filed a notable new lawsuit on behalf of a notable prisoner group. Here are the details:

The 11 men on Nebraska death row do not have valid death sentences, a leading anti-capital punishment group argued in a lawsuit filed [Monday]. The ACLU of Nebraska charged that the death penalty repeal, enacted by the State Legislature over a veto by Gov. Pete Ricketts, was in effect long enough to convert the death sentences for the 11 men to life in prison.

Last year’s vote by Nebraskans to restore capital punishment did so only for future heinous murders, according to the 29-page lawsuit filed shortly after midnight. The suit also alleges that Ricketts violated the separation of powers clause of the State Constitution when he “proposed, initiated, funded, organized, operated and controlled” the signature-gathering campaign that allowed voters to overturn the Legislature’s repeal of the death penalty.

The ACLU claims that the governor “exhausted” his executive powers when he vetoed the repeal law passed by lawmakers and that his subsequent steps to back a referendum that restored the death penalty were unlawful “legislative” activities that are reserved, via the separation of powers clause, for the State Legislature.

The referendum process, the civil rights group argued, is for citizens, but Ricketts had encouraged formation of the signature drive, played a leading role in financing it and had lent key employees to the effort, which was officially led by people with strong ties to the governor. “This is way beyond what the governor can do in his personal capacity,” Danielle Conrad, executive director of the ACLU of Nebraska, said Sunday. “This is about blurring the lines and overstepping the bounds.”

A spokesman for Ricketts said Monday that the “frivolous” ACLU lawsuit was another attempt by the “liberal advocacy group” to overturn the “clear voice” of the people. Taylor Gage, the spokesperson, rejected any wrongdoing by the governor. “The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” Gage said in a prepared statement. “The administration remains committed to protecting public safety and creating a safe environment for our corrections officers.”

The Ricketts administration recently gave notice that it may soon seek an execution date for one of those 11 death row inmates, Jose Sandoval, who was sentenced to die for his leading role in the slaying of five people inside a Norfolk bank in 2002. A month ago, state prison officials notified Sandoval that four lethal injection drugs had been purchased for use in an execution. The notice is required before an execution date can be requested....

Monday’s lawsuit names the 11 men on Nebraska’s death row as plaintiffs, and follows other legal action launched by the civil rights group against the state in recent months. In August, the ACLU asked a federal judge to intervene to reduce the chronic overcrowding in state prisons and address the shortage of medical and mental health care for inmates. In addition, the ACLU went to court on Friday to force the state to reveal the supplier of four lethal-injection drugs, citing state public records laws and the state’s botched past attempts to obtain such drugs.

Conrad said the legal actions reflect the ACLU’s commitment to defend the U.S. and Nebraska Constitutions, and is in step with the organization’s long-running opposition to the death penalty. Conrad, a former state senator and a Democrat, was among the leaders of Nebraskans for Public Safety, the group that campaigned unsuccessfully to persuade voters to retain the repeal of the death penalty. She said that today’s lawsuit is about policy, not politics.

The complaint in this action is available for download at this link.

December 5, 2017 at 09:52 AM | Permalink


Verrry interesting🤔

Posted by: Docile the Kind Soul | Dec 5, 2017 1:14:56 PM

This seems to be a question of Nebraska law.

Part of the problem is that government officials exist in both their official and personal capacity. In his official capacity, the Governor Ricketts's official role may have been at end when he vetoed the legislation. At that point, however, Citizen Ricketts had the same rights as any other individual to petition to place an issue on the ballot (or to support a petition sponsored by others). So the fact that Mr. Ricketts is both Citizen Ricketts and Governor Ricketts does not preclude Mr. Ricketts from using his personal funds (in his Citizen Ricketts capacity) to organize and push a referendum. As such, I can't see the claim of misconduct by the Governor as going anywhere. (It also appears to be a rehash of the claims raised to prevent it from being placed on the ballot.)

The bigger question is how Nebraska treats such referendums. In my state -- and it sounded when the referendum was being pushed that Nebraska has the same concept -- people wanting to challenge a new law have two options: 1) a referendum to pass a new statute restoring the previous rule or 2) a referendum to "veto" the new statute. Under the first option, the new law goes into effect. Under the second option, the new law never takes effect. At least some of the stories that I have seen indicate that it was veto referendum and that the supporters obtained enough signatures to prevent the new law from going into effect before the date of the referendum. If this is correct, the repeal legislation never took effect (the same as if the veto override had failed) and the challenge to the pre-existing sentences is without merit.

Posted by: tmm | Dec 5, 2017 4:07:29 PM

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