LINCOLN — If Nebraska’s death penalty is ultimately repealed, the state could end up with the bizarre situation of having 11 men on death row but no legal way to impose a death sentence.
Solicitor General James Smith of the Nebraska Attorney General’s Office said the State Legislature has no constitutional authority to change a criminal sentence that has already been imposed.
So the bill approved by state senators on Wednesday does not do that. Instead, it removes from state law the statutory means for carrying out the death penalty.
The result: the 11 current members of Nebraska’s death row might remain there, and without a means to carry out a death sentence, they would serve de facto life sentences.
“Without a way to carry it out, there can be no more executions,” said State Sen. Ernie Chambers of Omaha, the lead sponsor of Legislative Bill 268.
Smith, however, added that it doesn’t mean that the Legislature, at a later date, couldn’t enact a new process to carry out those sentences.
Politically, however, that would appear to be a long shot.
Chambers, a master at bill-killing filibusters, would fight any effort to restore the death penalty for current members of death row, and it would take 33 of the Legislature’s 49 senators to overcome a filibuster. That would seem unlikely after 32 senators voted Wednesday to repeal the death penalty for future cases.
Both Smith and Alan Peterson, an ACLU of Nebraska attorney who represents death-row inmate Carey Dean Moore, said that if the state’s death penalty is ultimately repealed, it would inspire a new round of court appeals by those inmates currently on death row.
It would be “mighty tough” to execute someone, Peterson said.
What to do with those currently on death row has been an issue for six states that have repealed their death penalties in the past decade, according to Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center.
Dunham said that two states, Connecticut and New Mexico, made it clear in their bills that the repeal would not be retroactive, and would not impact those on death row, only new crimes.
As a result, both states still have inmates with valid death sentences, he said, and they face the possibility of execution.
But repeal bills in four other states have been followed by steps to commute the sentences of those on death row to life in prison.
For instance, on Dec. 31, Maryland Gov. Martin O’Malley commuted the death sentences of the four men remaining on that state’s death row to life without parole.
Maryland repealed capital punishment in 2013, but the repeal was not retroactive.
In Nebraska, the governor, by himself, cannot commute a death sentence to life in prison. But the three-member Nebraska Board of Pardons (of which the governor is a member) could do that.
That, too, is politically unlikely.
The Pardons Board, which now consists of the Gov. Pete Ricketts, Secretary of State John Gale and Attorney General Doug Peterson, has commuted only two death sentences to life in prison in the past six decades, and the last one dates back to 1964.
The board has also been extremely reluctant to gives those sentenced to life in prison for murder a chance at parole.
Over the past 25 years, the board — with various members — has granted reprieves for only three men convicted of first-degree murder. And the last one, in 2013, ended badly when Laddie Dittrich was returned to prison after being charged with molesting a 10-year-old girl.
At a recent Pardons Board hearing, Gale said the Dittrich case had soured him on the idea of commuting others with life sentences.
World-Herald staff writers Joe Duggan and Martha Stoddard contributed to this report.
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