LINCOLN — Should the Nebraska Supreme Court wait for legislative action on the sentencing of juvenile murderers or strike out on its own?
That was the key question facing the state's high court Tuesday as it heard three appeals from young people convicted of murder in Douglas County.
The cases offered the court its first opportunity to consider its options in the wake of a U.S. Supreme Court ruling that overturned state laws requiring life sentences for juveniles convicted of murder.
Attorney James Martin Davis urged the court to act cautiously and give the Nebraska Legislature time to address the issue.
“You have to be careful with the remedies here, because this is political,” he said.
Davis pointed out some recent rulings that have provoked strong public reactions, including campaigns to oust judges. The latest is the Iowa Supreme Court ruling allowing same-sex marriage.
He suggested that the Nebraska court wait until the end of the coming legislative session, which is scheduled to wrap up in early June.
During questioning, the judges explored the potential downsides of waiting. But they were more skeptical about the legality and practicality of other ideas presented by attorneys arguing the cases.
Two attorneys suggested the court give their clients lesser sentences.
Tom Riley, Douglas County public defender, argued that the U.S. Supreme Court ruling means juveniles cannot be charged with first-degree murder in Nebraska while the only sentence available is life without parole.
That means, he said, that such juveniles should be resentenced for second-degree murder charges, getting 20 years to life.
Attorney Adam Sipple argued that his client should be given the sentence for his next most serious conviction, that of robbery.
Chief Justice Michael Heavican questioned what legal authority the court would have to change the sentences.
Assistant Nebraska Attorney General James Smith said the court should send the appeals back to the lower court for consideration of factors identified in the U.S. Supreme Court decision.
Among those are a defendant's age and maturity level, in light of recent scientific findings about adolescent brain development.
Judge Kenneth Stephan questioned how that approach would resolve the issue about whether the court could give a different sentence if a life sentence were found to be inappropriate.
Smith said the approach would give the Legislature time to act.
Nebraska and 28 other states were left with a dilemma by the 5-4 ruling that mandatory life sentences for people who commit murder while under age 18 violate the Eighth Amendment's prohibition on “cruel and unusual punishments.”
Under the ruling, states still can impose life sentences on juveniles, but such sentences cannot be a judge's only option.
In July, the Nebraska Pardons Board put off a decision on two cases involving juveniles convicted of murder.
Board members said they wanted to wait for legislative action rather than consider commutation requests one by one from the 26 or so people affected by the high court ruling.
The cases heard Tuesday all involved teenagers sentenced to life in prison for homicides committed in Douglas County.
Eric Ramirez, represented by Davis, was 17 when he was involved with the murders of Tari Glinsmann, 27, and Louis Fernando-Silva, 22, during a November 2008 robbery spree in Omaha. A third victim, Charles Denton, was wounded. Prosecutors said Ramirez was the shooter in the cases.
Another participant, Juan Castaneda, represented by Riley, was 15 at the time of the killings.
Douglas Mantich, represented by Sipple, was 17 when he was involved with the December 1993 deadly carjacking of Henry “Hank” Thompson of Omaha.
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