LIFE MEANS LIFE

A life sentence in Nebraska means life in prison, no chance of parole.

Some advocates of bringing back the death penalty have said that Nebraska doesn’t have life without parole, this is a lie.

Nebraska law does NOT allow probation or parole for anyone sentenced to life in prison.

“I spoke to Bob Houston and I spoke to Don Kleine who’s Douglas County Attorney about this issue and a couple of other attorneys, and under the statute the difference between “life” under 1A and “life without parole” is merely semantics, there is no actual difference.”

                                -State Senator Burker Harr, former Deputy County Attorney, during 2011 floor debate [1]

The Nebraska Revised Statutes and the Nebraska Supreme Court have long been clear that the mandatory minimum sentence for anyone convicted of a class 1A Felony is a life sentence:

• “A person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation.” R.R.S. Neb. §28-105 (4)[2]
• According to the Nebraska Parole Board it would be incapable of calculating parole for a life sentence because “parole eligibility is determined by the minimum sentence imposed by the Court;”[3] and a life sentence provides no base to work from.
• “An inmate sentenced to life imprisonment for first degree murder is not eligible for parole until the Nebraska Board of Pardons commutes his or her sentence to a term of years.” R.R.S. Neb §83-1,110[4]
• In a 2000 ruling, the Nebraska Supreme Court clarified what a life sentence means vis-à-vis parole eligibility. “When a flat sentence of “life imprisonment” is imposed and no minimum sentence is stated, by operation of law, the minimum sentence for parole eligibility purposes is the minimum imposed by law under the statute.”[5]

The Nebraska Supreme Court ruled, in 2014, that a “life” sentence in Nebraska is no different than “life without parole”.

Following the US Supreme Court ruling in Miller v Alabama, forbidding the sentencing of juveniles to life without parole, Nebraska’s high court ruled in a series of decisions[6], applying Miller, that Nebraska’s life sentence is no different than life without parole:

• “Assistant Nebraska Attorney General James Smith argued that the sentences were unaffected by Miller because the statute didn’t specifically say “without the possibility of parole.”[7] The Nebraska Supreme Court disagreed with the state, and in its ruling clarified why: “But the life imprisonment sentences imposed upon Castaneda were effectively life imprisonment without the possibility of parole and unconstitutional under Miller.”[8]

In a 2015 opinion requested by Senator Coash, Doug Peterson, Pete Ricketts own Attorney General, confirmed that life means life.

“does the absences of the words “without the possibility of parole” open the possibility of parole for an inmate sentenced to “life in prison?” The answer to your question is, “No.””[9]In a 2015 memo to the Nebraska Unicameral, Retired District Court Judge Ronald Reagan explains why a Nebraska life sentence does not make parole possible.

“Under current Nebraska law, a sentence of life imprisonment is effectively life imprisonment without parole”. [9]

In a 2015 memo to the Nebraska Unicameral, Retired District Court Judge Ronald Reagan explains why parole isn’t possible with a life sentence.

• With the removal of Nebraska’s death penalty “a conviction for 1^st Degree Murder imposes a sentence of imprisonment of life. When such a sentence is imposed, parole is not possible. Parole eligibility is based on a minimum sentence that sets out a term of years. A sentence of life imprisonment has no minimum term of years–therefore the Parole Board has no authority, and parole is, quite simply, an impossibility.”[10]

In 2011, the legislature removed the words “without parole” from our life imprisonment statute; affirming life in Nebraska means life without parole.

During the 1/07/11 floor debate, Senators Harr (former Deputy County Attorney) and Lautenbaugh had an exchange confirming that life means life (note that during this session the legislature also considered LB13 to add ‘without parole’ back into the statute and that bill did not pass). LB 12 passed its final reading with a vote of 45-0-4:

• “SENATOR LAUTENBAUGH: And LB12 removes the language that says without possibility of parole, is that your understanding? [LB12]
• SENATOR HARR: That is correct. [LB12]
• SENATOR LAUTENBAUGH: Do you have any understanding that we lose anything by taking those words out? [LB12]
• SENATOR HARR: The answer is, we do not. [LB12]
• SENATOR LAUTENBAUGH: And why is that? [LB12]
• SENATOR HARR: And I understand… [LB12]
• SENATOR LAUTENBAUGH: I’m sorry. Why is that? [LB12]
• SENATOR HARR: And I spoke to Bob Houston and I spoke to Don Kleine who’s Douglas County Attorney about this issue and a couple of other attorneys, and under the statute the difference between life under 1A and life without parole is merely semantics, there is no actual difference. [LB12]
• SENATOR LAUTENBAUGH: Because life under 1A is life without possibility of parole.
• SENATOR HARR: Unless commuted, that’s correct, which would be the same under both situations. [LB12]
• SENATOR LAUTENBAUGH: It could only commuted by the Pardons Board, is that correct? [LB12]
• SENATOR HARR: That is correct, Senator. [LB12]
• SENATOR LAUTENBAUGH: But that’s true whether we had the words in there or not, is that correct? [LB12]
• SENATOR HARR: That is correct. [LB12]
• SENATOR LAUTENBAUGH: Thank you, Senator Harr. [LB12]
• SENATOR HARR: Thank you. [LB12]”[11]

The only possibility for relief from a Nebraska life sentence is a rare and difficult two-step process.  This rare process is available to anyone in Nebraska with ANY sentence, including death.

• First, the Board of Pardons (which is composed of the Governor, the Attorney General, and the Secretary of State) has the ability, under Nebraska Law to commute a life sentence (and any sentence, including a sentence of death) to a term of years.  It is highly unlikely this would ever happen. Over the past twenty years, only three offenders sentenced to life imprisonment for first degree murder have had their sentences commuted.[12]
•  If this were to happen, then the Board of Parole (all of whom are appointed by the Governor) would then have to make a person eligible to apply for parole.[13] Importantly, a person is not eligible for parole unless they have served one-half of their prison term. Therefore, assuming the Board of Pardons were to commute a sentence of life imprisonment to a sentence of years in prison (for example, 50 years), the person would still need to serve one-half of those years in prison (in this example, 25 years) before even being eligible for parole.[14]
• The Nebraska Supreme Court affirms this truth In, State v. Castaneda, 287 Neb. 289, 313 (2014). The High Court said that Nebraska’s current parole system does not apply unless and until executive clemency is granted in the form of sentence commutation by the Board of Pardons.  State v. Castaneda, supra. [15]

Pardons granting reprieve from life sentences in Nebraska are rare.

• In 2015, Retired District Court Judge Ronald Reagan explained to the legislature that the Board of Pardons rarely provides relief from felony sentences. “The power to commute a life sentence to a term of years vests the Board of Pardons with executive clemency, and has existed for years. I remember only one case, over 50 years ago, where the Board commuted a sentence of death to a sentence of life imprisonment. That individual, Luther Wilson, died in prison. LB 268 has absolutely no effect on the power or authority of the Board of Pardons. That power and authority of executive clemency could be exercised to commute death sentences, life sentences, and any other sentence. But the possibility the Board of Pardons would commute a life sentence for 1^st Degree Murder to a term of years is just as remote as the possibility it would commute a death sentence to one of life or term of years.”[16]
• In a 2015 article, the Lincoln Journal Star reported the Pardons Board consistently takes a hard line on life sentences. “But over the past 25 years, the board — with various members — has granted reprieves for only three men convicted of first-degree murder.”[17]

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