Sen. Ernie Chambers of Omaha -- arguably the Legislature's most ardent death-penalty opponent -- wants to change the way Nebraska decides whether to execute someone.
Under state law, someone convicted of murder faces what amounts to a second trial, where jurors decide whether there are aggravating factors surrounding the crime. If they find there are, a three-judge panel then decides whether the death penalty is warranted.
The law lists nine aggravating circumstances, such as whether the murder was done for hire or to cover up evidence of another crime.
But Chambers has introduced a bill (LB542) to eliminate one: "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence."
In explaining his reasons for bringing the bill at a Friday Judiciary Committee hearing, Chambers said the aggravator "is the most litigated, judicially 'interpreted, tweaked and defined', confusing, unworkable, disagreed upon aggravator in the litter."
"No one knows precisely what it means; no one can say precisely what it means -- because it is not susceptible of precise meaning," he said.
In 1972, in a case called Furman v. Georgia, the U.S. Supreme Court ruled that there must be a degree of consistency in the application of the death penalty. That led to a de-facto moratorium on it until the court's 1976 ruling in Gregg v. Georgia. In that case, the court reaffirmed its acceptance of the use of the death penalty as long as the sentencing scheme incorporated two main features to comport with the Eighth Amendment prohibition against cruel and unusual punishment.
* The scheme must provide objective criteria to direct and limit discretion in death sentencing.
* The scheme must allow the judge or jury to take into account the character and record of the defendant.
Nebraska has been using its present system of sentencing people to death since 2002, when the U.S. Supreme Court issued a ruling in an Arizona case that prompted then-Gov. Mike Johanns to call lawmakers into a special session to change how the state sentences people in capital cases.
The ruling in Ring v. Arizona said juries, not judges, must have a say in who gets the death penalty. In Nebraska, only judges had handed down death sentences since state lawmakers decided in the 1970s there was the potential of bias by juries.
Chambers said the "heinous" aggravator has made sentencing in capital cases legally murky.
"The best efforts of bench and bar to bring order out of the statutory chaos have proved to be futile. Almost every attempt by the courts has only further muddied the legal waters.
"In criminal law, especially where a life literally hangs in the balance, vagueness, indefiniteness, uncertainty are unacceptable and offend against both the U.S. and the Nebraska constitutions," Chambers said.
Lincoln attorney Alan Peterson, a longtime opponent of the death penalty, testified in support of the measure on behalf of the American Civil Liberties Union.
"The problem of arbitrary death sentencing survives because of this loosey-goosey aggravating factor," Peterson said. "And the problem of arbitrary or vague definitions is that it leaves room at the charging level, the sentencing phase and at the appellate level for one form or another of discrimination to exist and prevail."
Lancaster County Attorney Joe Kelly spoke against the bill on behalf of the Nebraska County Attorneys Association, saying Nebraska has developed instructions that are given to jurors about how to weigh the "heinous" aggravator.
"Over the years, the federal and the state courts have permitted state courts and judges to insert more particular jury instructions, like we have in Nebraska, that put more definition into those terms and allow them to be … used," he said.