Bailey Boswell in court

Bailey Boswell in court in July.

LINCOLN — Bailey Boswell, who could become Nebraska’s first woman on death row, has filed a challenge to the state’s death penalty.

Saline County District Judge Julie Smith on Monday set a Sept. 17 hearing for arguments on Boswell’s motion to declare the death penalty unconstitutional.

Boswell appeared briefly Monday in court, where she had been scheduled to enter a plea to charges of first-degree murder and unlawful disposal of human remains. The judge did not ask for a plea in light of the motion filed by Boswell’s attorney.

Boswell’s attorney, Todd Lancaster, filed the motion in Saline County District Court on Friday. Prosecutors had served notice two days earlier that they will seek the death penalty for Boswell, who is accused in the slaying of Sydney Loofe of Lincoln.

The motion argues that Nebraska’s sentencing procedure in death penalty cases is unconstitutional in several regards.

The motion cites a U.S. Supreme Court ruling that overturned Florida’s sentencing procedure because only judges, not juries, could decide mitigating factors. In Nebraska, juries decide whether aggravating factors exist, but a three-judge panel determines mitigating factors and weighs the aggravating and mitigating factors to determine whether the death penalty is warranted.

The motion also argues that the death penalty “violates the evolving standards of decency that mark the progress of a maturing society.” The motion describes the declining number of death sentences and executions in the U.S., concluding that the death penalty has now become an unconstitutionally “cruel and unusual punishment.”

Boswell’s motion claims that the decision to seek a death sentence is “arbitrary and capricious” because it falls to individual prosecutors, who are not provided standards in state law. In addition, it said that neither state law nor past court rulings sufficiently define “exceptional depravity,” which is one of the aggravating factors listed in Nebraska law.

Boswell, a 24-year-old native of Leon, Iowa, would be the first woman on death row in the state if she is found guilty and sentenced to death, according to State Department of Corrections records.

Loofe disappeared in November after going on a date with Boswell that was arranged online.

The 24-year-old store clerk’s body was found three weeks later, dismembered and wrapped in black plastic bags, in a rural area in south-central Nebraska, about an hour’s drive west from where Boswell was then living in Wilber, Nebraska.

World-Herald staff writer Joe Duggan contributed to this report.

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Martha Stoddard keeps legislators honest from The World-Herald's Lincoln bureau, where she covers news from the State Capitol. Follow her on Twitter @StoddardOWH. Phone: 402-473-9583.

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