AGO Opinion 97025
LB422 - Death Penalty Issues
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
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
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.