Nebraska's attorney general said Thursday he will seek a court decision on the state’s authority to carry out the sentences of 10 death row inmates.
Attorney General Doug Peterson's decision came in the wake of the Legislature's veto override of a bill (LB268) that would repeal Nebraska's death penalty. The bill would go into effect in late August.
Peterson said his office believes language in the bill is unconstitutional that refers to the Legislature's intent that inmates in Nebraska sentenced to death would have their sentences changed to life imprisonment.
"We believe this stated intent is unconstitutional," Peterson said.
Nebraska's Board of Pardons constitutionally has exclusive power to change final sentences imposed by the courts, he said.
Peterson said it's a question that needs to be addressed by the court: Can the legislative branch of government pass a law that creates a situation in which those inmates sentenced to death by the courts cannot be executed.
"Even if they didn't put in their intent language, we anticipate that it would be argued that the purpose was to not only have this effect on any prospective sentencing, but also post (sentencing), he said.
The filing seeking a declaratory judgment would probably be done in September or, perhaps, earlier, he said.
He thinks it meets the standards for a declaratory judgment, he said.
"We think there's a real controversy that needs to be resolved between the state and one or all of these defendants," he said.
Omaha Sen. Ernie Chambers, who introduced the bill and has been working 40 years to get the death penalty repealed, said in a letter to Peterson that the Legislature knows it lacks power to infringe the authority of the Pardons Board as the only entity that can alter sentences that have become final.
Intent language in bills has no legal effect, he said, but simply declares the desire or wish of the Legislature.
"It is not an unconstitutional directive to the Pardons Board," Chambers said.
He also clarified that the Nebraska Supreme Court does not issue advisory opinions. The only time it will give an opinion is if there is a controversy that is not contrived, Chambers said.
Because the Legislature cannot modify a sentence, the bill amounts to a reprieve because the sentence cannot be carried out, he said.
"He doesn't have a leg to stand on to get in court with what he's talking about," Chambers said.