In a late-Friday ruling, a judge put the brakes on any plans by the Nebraska Pardons Board to hold hearings next week to commute the life sentences of prisoners convicted as juveniles.
Douglas County District Judge Thomas Otepka granted an injunction request by 14 prisoners who believe the board is meeting to give them at least 50-year sentences, in the wake of a U.S. Supreme Court ruling that overturned mandatory life sentences for juvenile offenders.
After Otepka granted the injunction, the Nebraska Pardons Board canceled the hearings it had scheduled for Monday and Wednesday.
Nebraska Attorney General Jon Bruning said late Friday that his office was reviewing the ruling and considering the state's options.
"We respectfully disagree with the court's decision," he said. "This is an unnecessary delay to Nebraska's compliance with the Miller v Alabama decision that risks untold state financial resources."
Bruning sits on the Pardons Board, along with Gov. Dave Heineman and Secretary of State John Gale.
For now, Otepka's ruling derailed the board's plans to assign lengthy prison terms to the prisoners. Bruning has told others that the Pardons Board likely would give a minimum of 50-year sentences to the juvenile killers.
The plan emerged about two weeks ago — five months after the U.S. Supreme Court ruled in Miller vs. Alabama that judges must have options beyond automatic life terms for juvenile offenders. Such offenders can still be sentenced to life, but that cannot be a judge's only option, the high court ruled.
Pardons Board members declined interview requests this week about why those plans changed. Gale said earlier this month that it was more expedient for the board to commute the sentences of the prisoners than to have their cases reopened in court.
Bruning's office issued a statement Thursday saying: “These hearings will help to ensure the public remains protected and the offenders are held accountable for their crimes.”
Before the decision, prosecutors such as Douglas County Attorney Don Kleine and Lancaster County Attorney Joe Kelly were calling for the Pardons Board to wait until the Nebraska Legislature and Nebraska courts charted a new course on what to do with the juvenile offenders.
The board didn't respond.
Otepka seized on two arguments Douglas County Public Defender Tom Riley made against the board's planned action. Riley pointed out that the statute includes a section about prisoners applying for commutation before the board acts. Only two of the 24 prisoners that remain on the Pardons Board list had applied for commutation. And both of those prisoners have indicated they wanted to withdraw their applications.
“The Court concludes that an application prior to the Board exercising its clemency power is certainly contemplated by the statute,” Otepka wrote.
Otepka also shot down the state's reliance on a prior case as “overly broad.”
Assistant Attorney General James Smith had pointed to a 1992 Nebraska Supreme Court ruling over an appeal by former death row inmate Harold Lamont Otey. Otey — who later was executed for the rape and murder of Jane McManus — argued that the Pardons Board hadn't given him due process.
The high court rejected his appeal, saying: “The judicial branch of government may not interfere with the Board of Pardons' exercise of . . . its clemency power.”
“In short, the Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all,” the high court ruled in 1992.
Smith also argued that these prisoners could not show they would suffer “irreparable harm” if the Pardons Board acted — a standard that must be met before a judge issues an injunction. He noted that they always can address any concerns they have through further court motions.
Riley called that argument disingenuous. He predicted that the Attorney General's Office would fight any future court challenges to the commutations by simply repeating the argument that the courts have no authority over Pardons Board actions.
“Once the Board acts, Plaintiffs will have no recourse for judicial review of the Board's actions,” Otepka ruled.
The ruling was a relief to families of victims and prisoners alike.
Kleine said he had heard from several victims' families who were angst-ridden over the prospect of having to relive their cases. One woman — who was 8 when she witnessed her babysitter being stabbed to death — bought an airline ticket to make sure she could make next week's hearing. Now a young woman, she had planned to travel to Lincoln to testify against the killer, Kleine said.
The week wasn't any picnic for prisoners' families, either, Riley said. Several relatives were initially overjoyed with the prospect of finally getting a commutation hearing for their loved ones, Riley said.
That hope was dashed when they heard word of the plans to impose minimum 50-year sentences.
“I can't even imagine the roller coaster ride this week has been for them,” Riley said. “They can finally exhale.”
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