Pardon Board's plan to resentence 27 inmates draws chorus of objections -
Published Wednesday, November 28, 2012 at 1:00 am / Updated at 1:51 pm
Pardon Board's plan to resentence 27 inmates draws chorus of objections
Nebraska Pardons Board
Members: Gov. Dave Heineman, Secretary of State John Gale, Attorney General Jon Bruning

Background: The Board of Pardons was created by a 1920 amendment to the Nebraska Constitution. The governor, attorney general and secretary of state are designated by the constitution as its members. The board receives and considers applications for pardons, reprieves and commutations of sentence, including whether to restore driving privileges.

Gallery: See the inmates who are getting a new sentence

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Prosecutors, defense lawyers and even some victims' families are balking at a plan by the Nebraska Pardons Board to give new sentences to 27 inmates who received life sentences as juveniles.

One advocate questions whether the Pardons Board — made up of the governor, attorney general and secretary of state — is trying to do a “run” around a recent U.S. Supreme Court ruling that forbids states from imposing automatic life terms on juveniles, even those convicted of murder. A long-serving defense lawyer says he will most likely seek a court injunction to block the Pardons Board from acting.

The nation's highest court ruled that mandatory life sentences for juveniles violate the U.S. Constitution's prohibition on cruel and unusual punishment. Under the ruling, judges still can impose life sentences on juveniles, but that cannot be a judge's only option.

That left Nebraska, Iowa and 27 other states in a dilemma.

The Nebraska Supreme Court has yet to rule on appeals challenging Nebraska's mandatory life sentences for juvenile murderers. The Legislature plans to spend part of next session hammering out an alternative sentencing law for such juveniles.

In July, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 people to life sentences that allow parole only after 60 years in prison. Branstad said he acted to keep the prisoners from being resentenced, possibly to more lenient terms, in the wake of the U.S. Supreme Court ruling.

None of the Nebraska Pardons Board members — Gov. Dave Heineman, Attorney General Jon Bruning and Secretary of State John Gale — granted interviews requested Tuesday by The World-Herald. The board will meet next week to hold hearings on the cases, all but one involving a person convicted of murder.

Gale said earlier this month that it was more expedient for the Pardons Board to commute the sentences of the inmates rather than have them reopened in court.

“Obviously it imposes a high burden on us to ensure that we do it right and meet the test of the U.S. Supreme Court,” Gale told the Associated Press. “But we felt that it was worth the effort and time that we'll obviously have to invest in the process.''

Defense lawyers argue that commuting the sentences to 50 years or more will all but ensure that their clients remain in prison for the rest of their lives. Prosecutors question whether such hearings would accomplish anything — saying they believe prisoners would still have the right to file further court challenges to any term given by the Pardons Board.

Douglas County Public Defender Tom Riley, the lawyer who said he is likely to ask a court to block the Pardons Board hearings, said his office has represented at least a dozen of the affected prisoners.

Riley said Bruning indicated to him that after the hearings, the Pardons Board would place the prisoners into one of three categories based on culpability and other factors. He said he was told the prisoners' minimum sentences would be 50 calendar years. Two other attorneys said they heard the same plan.

Riley called that the “equivalent of a life sentence.”

“That's a fear they have, certainly,” said Omaha resident Mel Beckman, who has met with several of the affected prisoners' families. “It looks grim.”

In a statement, Bruning's office denied that the Pardons Board would take a one-sentence-fits-all approach.

“In speaking with Mr. Bruning ... it was my impression that the parole eligibility dates for these cases is going to be in excess of 50 years,” Riley wrote in a letter Tuesday asking the Pardons Board to delay the hearings.

Bruning's office said the board has no plans to do so.

“The Pardons Board will meet next week as scheduled,” spokeswoman Shannon Kingery said. “Each commutation request will be addressed individually. Per usual course, those seeking commutation will have an opportunity to address the board. All decisions will be made on an individual basis at the hearings.”

Douglas County Attorney Don Kleine said the Pardons Board's action, “however well-intended, is premature.”

Kleine said he wants the hearings delayed until the Nebraska Supreme Court and the Legislature have had a chance to act. He said the Nebraska County Attorneys Association is working with state senators on drafting new sentencing guidelines for juvenile killers.

Both Kleine and Lancaster County Attorney Joe Kelly said the Pardons Board did not contact them before they learned of the board's plan eight days ago. Both were scrambling to contact victims' families. Kleine's office handled 18 of the 27 cases. Kelly's office handled two.

Both prosecutors doubted that the hearings would prevent prisoners from seeking new sentencing hearings before a judge.

That might mean victims' families would face the prospect of having to testify at multiple hearings.

“I don't want to see them have to go through any more than they have to,” Kleine said. “I don't want them to have to suffer reliving the details of what happened unnecessarily.”

Riley, Kleine and Kelly were puzzled by other factors of the Nebraska Pardons Board's plans:

In July, the board put off a decision on two cases involving juveniles convicted of murder. At the time, board members said they wanted to wait for legislative action rather than consider commutation requests.

The first three inmates listed as being considered for commutation are still waiting for appeals — and haven't even had their life sentences affirmed by a higher court.

The hearing agenda says the board will allow five minutes of testimony from the following individuals: the Attorney General's Office, the county attorney or prosecutor involved in the case, one representative of the offender's family and/or friends and one representative of the victim's families and/or friends. It does not specify that the board will hear from defense lawyers, though a governor's spokeswoman said a defense attorney can speak on behalf of the offender's family.

The decision to hold hearings came just a few weeks after one of Bruning's assistant attorneys general argued to the Nebraska Supreme Court that the U.S. Supreme Court ruling should not be applied retroactively. That argument has yet to be ruled upon.

Several of the inmates listed on the Pardons Board agenda have not applied for commutation, according to Riley. He said such an application is required under state law.

“That's one of the red flags that tells me that this hasn't been thought through very deeply,” he said.

Riley said he hasn't had a chance to talk to, or meet with, several of the dozen or so inmates his office represented. However, he met Saturday for two hours with some of their family members.

Many members were brimming with hope after the U.S. Supreme Court ruling. Then Riley informed them of the sentencing categories.

“I felt like the Grinch who stole Christmas,” he said.

Kelly, the Lancaster County attorney, said he can see why the Attorney General's Office is searching for a solution. But as of Tuesday, Kelly said, even he had no information on one of the Lancaster County cases before the board — a murder in which the inmate was sentenced in 1977. “I don't know anything about it,” Kelly said.

“It's very understandable that (the Attorney General's Office) is looking for some way to fashion a remedy without litigating 27 different cases for the next several years,” Kelly said. “My guess is there was some thought that, like Iowa, you could find an accommodation that might move this state through this great uncertainty.”

However, Kelly said, he is not convinced that any commutations would preclude a prisoner from requesting a new sentencing hearing under the high court's decision.

Gene Glinsmann said he's not anxious to see anyone get a Pardons Board hearing. Glinsmann sat through two trials for the young men — Juan Castaneda, then 15, and Eric Ramirez, then 17 — who took part in a 2008 robbery spree that left his daughter, Tari Glinsmann, and Luis Silva dead.

Board members “are politicians,” Glinsmann said. “They are not a representative of the law. Seems to me this should be decided by a judge who knows the details of the case.”

World-Herald staff writer Martha Stoddard contributed to this report.

The people pictured below — in photos then and now — were under age 18 when they received mandatory life sentences in Nebraska. In June, the U.S. Supreme Court ruled that automatic sentences for juveniles are unconstitutional. Since then, states have scrambled to comply with the decision. Iowa Gov. Terry Branstad commuted mandatory life sentences of 38 inmates to life terms that allow parole after 60 years in prison.

Nebraska has chosen a different remedy

Click the arrows to see the inmates who received a new sentence.

Contact the writer: Todd Cooper    |   402-444-1275

Todd covers courts and legal issues for The World-Herald.

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