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OPINION 97025

DATE: April 11, 1997

SUBJECT: LB422 - Death Penalty Issues

REQUESTED BY: Senator Douglas Kristensen

WRITTEN BY: Don Stenberg, Attorney General




You have written to me to obtain my "thoughts on some issues

concerning LB422." In your letter you say that you are not

requesting a formal written opinion from my office.




It has been the practice of the Attorney General's Office

under at least the last three Attorneys General not to give a

private Attorney General's opinion to an individual Senator. It is

my understanding that the reason for this policy was insistence by

members of the Legislature that all Senators have access to the

same legal information regarding a legislative bill at

approximately the same time. Indeed, to this day, the Clerk of the

Legislature is insistent that Attorney General's opinions to

members of the Legislature be promptly provided to his office so

that they may be shared with the entire Legislature as

expeditiously as possible.




By the same token, because of the importance of the issues

involved and the possibility of mis-communication through verbal

means, an oral response would not be appropriate for the important

questions which you have raised.




Accordingly, I am responding to your questions in the context

of this formal Attorney General's opinion which will be shared

equally with your colleagues by the Clerk of the Legislature.




You first ask whether LB422 as amended is unconstitutionally

vague. In my opinion, LB422 as amended is not unconstitutionally

vague. I will provide you with a more extended analysis of this

question if you so desire and if the schedule of the Legislature

permits.




You next ask whether LB422 "weakens or confuses Nebraska's

death penalty statutes." The answer is yes. Under LB422 as

amended, the death penalty may never be applied to a person who is

"mentally retarded." Under current law, "mental defect" which

includes mental retardation, is a mitigating circumstance already

required to be weighted by the court when determining a sentence.

However, "mental retardation" is not presently an outright bar to

imposition of the death penalty. Under current law, the important

question is "the capacity of the defendant to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law."




Under LB422 as amended, a mentally retarded person who

understands that it is wrong to kill and who has the mental

capacity to stop himself from killing, but who kills a dozen young

children at a fast-food restaurant with a semi-automatic weapon,

could not be subject to the death penalty.




In LB422 as amended, mentally retarded is defined as

"significantly subaverage general intellectual functioning existing

concurrently with deficits in adaptive behavior." It is probably

fair to say that many killers, whether mentally retarded or not,

have deficits in their adaptive behavior. The question then is

what is "significantly subaverage general intellectual

functioning?" LB422 tells us that an intelligence quotient of 70

or below is presumptive evidence of mental retardation. However,

someone with an intelligence quotient of 90, who understood that

murder is wrong, and who had the ability to stop himself from

murdering, could still be found "mentally retarded" and would not

be eligible for the death penalty.




If LB422 is passed in its current form, it is likely that we

will see men like triple killers John Lotter and Clarence Victor

arguing that even though they knew that murder was wrong and could

have stopped themselves from all of their killings, they are now

exempted from the death penalty. Whether they will be successful

with their arguments, of course, remains to be seen, but there is

every reason to believe the State of Nebraska will have to suffer

through additional years of litigation to know the answer.




Aggravating circumstance (1)(a) in LB422 refers to "prior

history." On the one hand, the court may view this insertion of

the word "prior" as a simple redundancy since, by definition,

history is events which have occurred in the past. On the other

hand, this provision might be applied to the following situation.

Assume a murder is committed and the defendant, subsequent to the

murder, rapes several women, robs several convenience stores,

shoots but does not kill several additional persons in separate

incidents, and at the end of this crime spree, is captured. In

that circumstance, the court might interpret "prior history" to

mean that none of these subsequent activities could be considered

for purposes of aggravating circumstance (1)(a).




Aggravator (1)(b) has been amended in LB422 to read as

follows, "The murder was committed in an effort to conceal the

commission of a crime or to conceal the identity of the perpetrator

of such crime." It is not completely clear whether "such" refers

to the murder or another crime. This could be an important

difference. For example, assume the defendant first raped a woman.

She reports that crime and the defendant is arrested and

subsequently released on bail. While on bail, the defendant shoots

the victim, whom he had previously sexually assaulted, and is never

seen by the victim in the course of the murder. If the words "such

crime" refer only to the murder, aggravator (1)(b) would not apply

to that situation because the murder was not committed to conceal

who committed the murder, it was committed to conceal who committed

the sexual assault. If the words "such crime" refer to the earlier

sexual assault, then aggravator (1)(b) would apply. The existing

statute refers to "a" crime and under that statute, aggravator

(1)(b) would clearly apply to the hypothetical just stated.




Aggravator (1)(h) is amended to provide that the "murder was

committed knowingly to disrupt or hinder the lawful exercise of any

governmental function or the enforcement of the laws." Previously

the statute had referred to the crime being committed to disrupt or

hinder, etc. Assume that a person disgusted with the Legislature

plants a bomb in the legislative chamber set to explode at 2:00

a.m. when no one is expected to be in the Capitol building.

Unfortunately, one diligent Senator is working very late in the

chamber and is killed in the explosion. Here, the bomb was

exploded in an effort to disrupt the exercise of a government

function (the convening of the Legislature the next day), but the

murder was not. Therefore, aggravator (1)(h) might not apply under

the new language whereas under the existing language, it would. On

the other hand, these facts would constitute a felony murder and if

the word "murder" were interpreted to include felony murder,

aggravator (1)(h) would still apply.




You next ask about LB422 resulting in "additional appeals."

While LB422 might in some circumstances lead to additional legal

arguments in the numerous appeals being filed, and might let

killers like Clarence Victor off death row if they can convince a

court that they are "mentally retarded," it does not change the

number of appeals available. Indeed, the biggest problem we have

with the death penalty in Nebraska today is that there is literally

no limit to the number of "appeals" (actually post-conviction

proceedings) that may be filed.




Considering all of the foregoing, I would make two

recommendations to the Legislature concerning LB422. First, I

would strike all of the amendments to existing law made by the bill

except Senator Matzke's provision which adds aggravating

circumstance (1)(i) relating to the victim being a law enforcement

officer. Second, and very importantly, I would further amend LB422

to limit the number of state post-conviction proceedings to one

round. Until that is done, it will remain effectively impossible

to carry out any additional capital sentences in the State of

Nebraska.




In your letter you state, "Additional appeals would further

delay the imposition of the death penalty, and create a greater

strain on the state's judicial and financial resources." It is for

that reason that I strongly urge you and the other members of the

Legislature to amend LB422 to limit to one the number of state

post-conviction proceedings allowed by Nebraska law.




Yours truly,






Don Stenberg

Attorney General