- Nebraska mandates a two-tiered proportionality review of aggravated murder sentences; non-murder sentencing is left to a factors-based, subjective judicial process that is subject to review for abuse of discretion.
Art. I, § 9. Bail; fines; imprisonment; cruel and unusual punishment: -- All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will, and murder, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
Art. I, § 15. Penalties; corruption of blood; transporting out of state prohibited: All penalties shall be proportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person by transported out of the state for any offense committed within the state.
Proportionality review mandatory, upon appeal, for all murder convictions
The Supreme Court must review murder sentences for proportionality upon appeal. Neb.Rev.St. §29-2521.02. The court is vested with the power to reduce any homicide sentence which it finds “not to be consistent with” §§29-2521.01-29-2521.04, 29-2522, and 29-2524. Neb.Rev.St. §29-2521.03.
Parole at one-half the minimum term
The legislature has mandated parole eligibility at one-half of an offender’s minimum term. Neb.Rev.Stat. §83-1, 110(1).
Board of Parole reviews minimum life terms for possible commutation
Minimum life sentences are reviewed during the first year of an offender’s sentence and every 10 years thereafter. If the life sentence is commuted, the board reviews the offender’s record annually when the offender is within five years of his earliest parole eligibility date. Neb.Rev.St. §83-192(1)(f)(v).
Sentences within the statutory limits are reviewed under an abuse of discretion standard. State v. Thurman, 273 Neb. 518, 530 (2007). An abuse of discretion occurs when the sentencing court’s reasoning is “clearly untenable and unfairly deprive a litigant of a substantial right and a just result.” State v. Segura, 265 Neb. 903, 909 (2003).
Sentencing judges should consider the following when imposing a sentence: the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. State v. Marrs, 272 Neb. 573, 530 (2006). This is a subjective judgment, “and includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all of the facts and circumstances surrounding the defendant’s life.” State v. Leonor, 263 Neb. 86, 99 (2002). The court is not “limited in its discretion to any mathematically applied set of factors.” Leonor, 263 Neb. at 99.
The state Supreme Court is required by statute to conduct a proportionality review of death sentences on appeal. State v. Mata, 275 Neb. 1, 29-30 (2008). This review is conducted de novo. State v. Gales, 269 Neb. 443, 487 (2005).
The proportionality review requires the court to compare aggravating and mitigating circumstances in the instant case with those of other cases in which the death penalty was imposed – ensuring that sentences track those imposed in cases with “the same or similar circumstances.” State v. Sandoval, 280 Neb. 309, 380-81 (2010). The statute does not require sentencing bodies to compare cases to those in which the death sentence has not been imposed. State v. Galindo, 278 Neb. 599, 672 (2009).
Leading Court Discussions of Graham and Miller
State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (April 22, 2011) (Graham does not apply to homicide cases. LWOP for juvenile convicted of first degree murder is not cruel and unusual punishment)
State v. Mantich, 287 Neb. 320 (February 7, 2014) (Miller was new substantive rule that applied retroactively on collateral review. Had an overall review on the issue of retroactivity in other jurisdictions. )
State v. Castaneda, 287 Neb. 289, 842 N.W. 2d 740 (February 7, 2014) (Remand case in direct review to district court; although the statute does not contain the word “without parole”, and parole is possible if the sentence commuted to a terms of years, such remote possibility does not satisfy Miller.)
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State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (February 7, 2014) (Miller is applicable to cases in direct review. Life sentence mandatorily imposed upon defendant is effectively LWOP.)
State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (February 14, 2014) (follows Castaneda and Ramirez)
State v. Smith, 288 Neb. 797 (August 8, 2014) (Nebraska Postconviction Act is the sole remedy for Eighth Amendment challenge to mandatory sentence of life without parole for non-homicide offense committed when prisoner was juvenile under Graham, and failure to challenge within time limit would forfeit the right.)
Court upheld sentence of 20 months to 5 years in prison for man found guilty of driving while license suspended; man had a lengthy history of DUI convictions. State v. Haley, 2003 WL 1207972, *4 (Neb.App. 2003).
Sentence of consecutive 15-30 month prison terms for two counts of possession of cocaine and amphetamine was not an abuse of discretion in case in which 42-year-old defendant had been to prison on drug charges three times before. State v. Tucker, 262 Neb. 940, 950-51 (2001).
Court upheld 10-20 year sentence for theft conviction under the state’s habitual criminal statute. Sentencing court found that defendant was a habitual criminal due to unspecified record of prior felony convictions. State v. Martinez, 2002 WL 31414437, *2 (Neb.App. 2002).
Court upheld 61- to 170-year sentence for robbery, sexual assault, kidnapping, and use of a firearm in the commission of a felony. State v. McGuire, 218 Neb. 511, 518 (1984).