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Nebraska Supreme Court weighs in on death penalty - so long old sparky

By 4L

The Supreme Court of Nebraska, in an convoluted state constitutional grounds argument, has given the United States Supreme Court some more secondary sources to churn through in their current death penalty case. See Nebraska Court Bans the Electric Chair. I haven't read through the 86 page opinion, nor do I plan to, but the good stuff begins around page 33. See Nebraska v. Mata (Neb. 2008).

According to the article, the Nebraska Legislature will soon be aiming to attempt a world record for the fastest constitutional amendment in the world. It remains to be seen whether the judiciary, the legislative, or the executive branch of Nebraska (the latter two being semi-governed by the court of popular opinion) wins the day.

As a behind-the-scenes government employee within the appellate court system, I am a little surprised that the Nebraska Supreme Court would jump the gun on the issue given that the issue regarding the constitutionality of the death penalty in general is currently before the Court. This is probably why they appear to have decided to deal with the issue on state constitutional grounds.

While their opinion may pass muster under Michigan v. Long, I still find their reasoning on state principles confusing given that they speak at lengths about the evolving standards of decency doctrine. Isn't that a federal interpretation? For all they know, that doctrine will be gone in less than four months. One more reason why this opinion probably should have been stayed. Of course, I'm not a Nebraska attorney, so who knows what is the law over there. Apparently not death by electric chair anymore.

I do find somewhat prescient about the opinion, though, and I think it may serve as some use to other states and circuits that begin grappling with the issue following whatever method the Supreme Court resolves the issue. Presuming the Supreme Court upholds the death penalty as constitutional, but remands or reverses as to the methodology barring further fact finding, this opinion shows one way that the lower courts may be able to task the issue by exercising their Daubert powers and create a record for a higher court appellate court to review (similar to how the Nebraska Supreme Court had accomplished this task). Or not. Given the uncertainty, why feel compelled to weigh in now rather than four months from now?

In my relevant Westlaw search, I have come at least one other state supreme court that has punted the issue. See Missouri v. Johnson (Mo. 2008) (acknowledging but not deciding the issue on procedural grounds). With the U.S. Supreme Court opinion due anytime now (up until June 30), I wonder how many others will follow Nebraska's path, or carve out their own.

Full post as published by The Once and Future Lawyer on February 08, 2008 (boomark / email).