§ 29-2519 — Statement of intent

Nebraska § 29-2519

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) The Legislature hereby finds that it is reasonable and necessary to establish mandatory standards for the imposition of the sentence of death; that the imposition of the death penalty in every instance of the commission of the crimes specified in section 28-303 fails to allow for mitigating factors which may dictate against the penalty of death; and that the rational imposition of the death sentence requires the establishment of specific legislative guidelines to be applied in individual cases by the court. The Legislature therefor determines that the death penalty should be imposed only for the crimes set forth in section 28-303 and, in addition, that it shall only be imposed in those instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances, as set forth in sections 29-2520 to 29-2524 .
(2) The Legislature hereby finds and declares that:
(a) The decision of the United States Supreme Court in Ring v. Arizona (2002) requires that Nebraska revise its sentencing process in order to ensure that rights of persons accused of murder in the first degree, as required under the Sixth and Fourteenth Amendments of the United States Constitution, are protected;
(b) The changes made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, are intended to be procedural only in nature and ameliorative of the state's prior procedures for determination of aggravating circumstances in the sentencing process for murder in the first degree;
(c) The changes made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, are not intended to alter the substantive provisions of sections 28-303 and 29-2520 to 29-2524 ;
(d) The aggravating circumstances defined in section 29-2523 have been determined by the United States Supreme Court to be "functional equivalents of elements of a greater offense" for purposes of the defendant's Sixth Amendment right, as applied to the states under the Fourteenth Amendment, to a jury determination of such aggravating circumstances, but the aggravating circumstances are not intended to constitute elements of the crime generally unless subsequently so required by the state or federal constitution; and
(e) To the extent that such can be applied in accordance with state and federal constitutional requirements, it is the intent of the Legislature that the changes to the murder in the first degree sentencing process made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, shall apply to any murder in the first degree sentencing proceeding commencing on or after November 23, 2002.

Legislative History

Source: Laws 1973, LB 268, § 1; Laws 1978, LB 748, § 21; Laws 2002, Third Spec. Sess., LB 1, § 10; Laws 2015, LB268, § 35; Referendum 2016, No. 426. Note: The repeal of section 29-2519 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election. Annotations: The death penalty is imposed for a conviction of murder in the first degree only in those instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020). The U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), which requires juries to find whether aggravating circumstances exist in death penalty cases, is not a substantive change in Sixth Amendment requirements that applies retroactively and did not make aggravating circumstances essential elements of capital murder. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The state's Special Procedure in Cases of Homicide statutes, sections 29-2519 to 29-2546, create a two-tier sentencing process and differentiate between the role performed by the district court judge or a three-judge district court panel in sentencing as compared to the role of the Supreme Court in reviewing that sentence. The statutes are specific regarding the sentencing procedures, and nowhere do they give the Supreme Court authority to resentence when it has found error on the part of the sentencing court that is not minor and not harmless. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000). There is no conflict between this section and section 29-2522. Only section 29-2522 details the standards which govern the imposition of the death penalty. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996). The Supreme Court is required, before imposing the death sentence, to not only consider the presence or absence of aggravating and mitigating circumstances but also to review death sentences and determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). A finding that an aggravating circumstance exists is of importance only where the death sentence has been imposed. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983). Court refuses to reconsider constitutionality of death sentence statutes. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981). The Nebraska death penalty statutes, sections 29-2519 to 29-2546, do not constitute cruel and unusual punishment and are not in violation of the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States or the Bill of Rights of the Constitution of Nebraska. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).