Nebraska’s death penalty repeal was temporary, but it changed inmates’ sentences, ACLU argues
LINCOLN — Was the State Legislature’s repeal of the death penalty in effect long enough to give the members of Nebraska’s death row a new sentence of life in prison?
Yes, an attorney with a leading civil rights organization told the Nebraska Supreme Court on Wednesday.
Brian Stull, a North Carolina-based lawyer with the American Civil Liberties Union, told judges that the repeal went into effect on Aug. 30, 2015, and wasn’t suspended until Oct. 16, when petition signatures were verified as sufficient to force a voter referendum on the future of capital punishment.
“Because a repeal was in effect, my clients no longer face the death penalty,” he said.
That was disputed by attorneys representing the state, Gov. Pete Ricketts and sponsors of the referendum. They argued that a Lancaster County judge was correct in dismissing the ACLU’s lawsuit 10 months ago. The repeal of the death penalty never went into effect, they said, because, four days before it was to be enacted, it was suspended when the referendum signatures were turned in.
Ryan Post of the Nebraska Attorney General’s Office also maintained that the power to change final criminal sentences is reserved only for the State Pardons Board.
“I don’t believe the Legislature can change the final sentences,” Post said. “They can change sentences (only) going forward.”
Supreme Court judges, who will rule later on the case, had several questions for the attorneys, who presented conflicting arguments on whether a law is suspended when referendum petitions are turned in or later, when they are verified as sufficient to force a vote.
Nebraska voters, by a large margin, restored the state’s death penalty at the ballot box in 2016. A year later, the ACLU of Nebraska filed suit, seeking a judgment that death row inmates’ sentences had been changed to life in prison because the Legislature’s 2015 repeal had gone into effect, if only for a few weeks. Lancaster County District Judge John Colburn rejected those arguments in February, prompting an appeal and Wednesday’s oral arguments.
The ACLU had argued earlier this year that the planned execution in August of death row inmate Carey Dean Moore should be postponed until their appeal was decided. But that claim was rejected and the execution of Moore — the state’s first in 21 years — was carried out.
On Wednesday, Stull argued that if the Legislature lacks the power to change sentences, that could prevent lawmakers from reforming overly harsh criminal sentences. He added that allowing the mere submission of petitions — before they are counted and verified — to suspend a law would frustrate the powers of the Legislature.
He also argued that the case wasn’t about jurisdiction but about clarifying that the death penalty repeal had gone into effect.
Post, meanwhile, said the signatures turned into the Nebraska Secretary of State on Aug. 26, 2015, exceeded the requirement — more than 10 percent of registered votes in the state — necessary to suspend the repeal of the death penalty until voters decided. So the repeal never went into effect, he said.
“The only way we can read the state constitution,” he said, was that the repeal was suspended “upon filing” of the petitions. There is no requirement that they be verified first, Post said.
Attorney J.L. Spray, who represented the sponsors of the referendum to restore the death penalty, said that changing the death row sentences to life in prison would “frustrate, chill or destroy” the right of voters to override decisions by the Legislature.