In an unusual move, the Nebraska Board of Pardons has set two dates in December to hear requests for commutation of life sentences from 27 inmates convicted as juveniles.
The board decided to hear the cases, knowing it was a complicated issue whether the Board of Pardons, the Legislature or the courts should address them, Secretary of State John Gale said.
"The Board of Pardons was probably the best situated to handle them in a fairly direct and efficient method to attempt to answer the questions raised by the U.S. Supreme Court," Gale said.
Gale, Gov. Dave Heineman and Attorney General Jon Bruning make up the board.
The commutation requests came about as a result of a U.S. Supreme Court ruling in June that life sentences for juveniles constitute cruel and unusual punishment, a violation of the Eighth Amendment to the Constitution. It said a defendant's age must be considered when passing sentence.
Twenty-six of the Nebraska cases involve convictions of first-degree murder. One involves a 1983 Washington County kidnapping conviction.
In July, the board tabled discussions on two requests for sentence commutations, saying it wanted time to investigate the facts of those and similar cases, find out the legal ramifications and how best to handle the requests.
Gale said the Legislature will need to address the issue, too, to establish sentences for juveniles convicted of first-degree murder. The law now provides a life sentence, instead of a number of years after which they can be eligible for parole.
In the June ruling, Justice Elena Kagan wrote that mandatory life without parole for a juvenile precludes consideration of his or her age and its hallmark features: immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment.
Omaha Sen. Brad Ashford, chairman of the Legislature's Judiciary Committee, said senators intend to introduce a bill to set a maximum sentence for juvenile offenders.
In 2011, Omaha Sen. Brenda Council introduced several bills on the topic, one that would have set the sentence at 50 years for those who committed their crimes at ages 16-18, and 40 years for those younger than 16.
Ashford said he was not informed of the board's intention to hear the 27 cases, but on the surface it seems the board is reacting appropriately.
The Pardons Board in its deliberations on cases considers the nature of crimes, the severity of cruelty and violence, how many years a person has served, what the inmate has done to advance his or her rehabilitation, whether there is remorse, and whether there is a network of support if the inmate should be paroled.
"These are all very emotionally intense matters, and we take them all seriously," Gale said.
The board felt that for each of the 27 cases to have to be reopened in court, with possible appeals, it was more expedient for the Pardons Board to address the cases.
"Obviously, it imposes a high burden on us to ensure that we do it right and meet the test of the U.S. Supreme Court," Gale said. "But we felt that it was worth the effort and the time that we'll obviously have to invest in the process."
If the cases are addressed in a meaningful and thoughtful way, he said, the board hopes the Legislature and courts won't see any need to address these 27 cases.
The board will look at the cases individually, reviewing case files before the hearings. Members will hear testimony from the Attorney General's office, the county attorney who handled the prosecution, a representative of the inmate's family or friends or someone from an advocacy group, and a representative of the victim's family. Each person would get five minutes to talk.
A decision would be made after the testimony, Gale said.
The hearings will be at 8 a.m. Dec. 3 and at 1 p.m. Dec. 5.
This summer, Iowa Gov. Terry Branstad used his executive power to commute the sentences of 38 inmates to life behind bars with the possibility of parole only after a minimum of 60 years in prison. None of the inmates there would be eligible for release until they are well into their 70s.