The writer, of Omaha, is editor of the Nebraska Criminal Justice Review.
The Nebraska Board of Pardons’ sudden decision to hold commutation hearings for the 27 inmates given life sentences as juveniles is cause for great concern.
Is this to be an action only slightly different from that taken by the governor of Iowa in July of this year, in which he ordered minimum 60-year sentences for Iowa’s 38 inmates convicted of murder when they were juveniles?
The Des Moines Register, in an editorial shortly afterward, called Gov. Terry Branstad’s action “a commutation in reverse.” The governor’s order was called “a pre-emptive move designed to preclude these 38 Iowa inmates from being considered for parole until they may be candidates for nursing homes.”
The U.S. Supreme Court, in the Miller v. Alabama decision this summer, held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.
What should happen, then, is that each one of Nebraska’s 27 inmates be sentenced to a mandatory life term and be allowed to have his post-conviction appeal of that sentence heard in court, based on the Miller v. Alabama decision.
A court hearing would result in a full-scale reconsideration of the person’s youth at the time and all the other mitigating factors leading up to his crime. There also would be a review of his prison behavior and achievements and an evaluation of his current maturity and risk of reoffending.
Finally, the attorney representing the inmate would have plenty of time to talk with his client and prepare for the court hearing. With such a hearing it could be determined if a life sentence in a particular case was unconstitutionally excessive. That sentence also could be remedied, if necessary.
Will the December commutation hearings be a “meaningful opportunity” for the inmates to have a full review of their cases and demonstrate their maturity and rehabilitation? It is very hard to see how that can happen in the 20- to 25-minute hearing that the Pardons Board plans to allot to each of them.
The hearings, as planned, can hardly be an adequate response to the U.S. Supreme Court’s new requirements for processing juvenile justice in Nebraska and other states.
If the Board of Pardons is planning to do a runaround of Miller v. Alabama, that would be a shame. Great diversity exists among the 27 Nebraska inmates in terms of their situations prior to prison, the degree of their involvement in crime, the amount of time they have served and their behavior in prison. A quick, one-size-fits-all handling of their cases would be wrong.
The way the hearings have been scheduled and the time allotted for them give the appearance that this is what is going to happen.
The Iowa solution isn’t the right one for Nebraska. Let’s use Miller v. Alabama and follow the lead of the U.S. Supreme Court.