Nebraska Narrowly Avoids Sending First-Ever Woman to Death Row as 3‑Judge Panel Splits on Sentence for Bailey Boswell

Nebraska, which had no plans for hous­ing a female death-row pris­on­er, has nar­row­ly avoid­ed hav­ing to address that fail­ure, as a divid­ed three-judge pan­el on November 8, 2021 sen­tenced Bailey Boswell to life in prison with­out pos­si­bil­i­ty of parole. 

Two mem­bers of the pan­el, Saline County District Judge Vicky Johnson and Lancaster County District Judge Darla Ideus, vot­ed for death. However, Nebraska law requires a unan­i­mous vote for the death penal­ty to be imposed, and Douglas County District Judge Peter Bataillon vot­ed for life. 

Boswell was con­vict­ed by a Dawson County jury in 2020 of killing and dis­mem­ber­ing Sydney Loofe, a 24-year-old woman whom Boswell and her boyfriend, Aubrey Trail, had lured for a date on the social media app Tinder. Trail was sep­a­rate­ly tried and con­vict­ed and was sen­tenced to death by a three-judge pan­el in June 2021. During his sen­tenc­ing tri­al, Trail admit­ted to the mur­der but said that Boswell had not been involved in the killing.

Nebraska is one of two states — the oth­er is Montana — in which the jury in a cap­i­tal case has no involve­ment in rec­om­mend­ing or impos­ing sen­tence. After deter­min­ing whether an aggra­vat­ing cir­cum­stance is present, the jury is dis­charged and there is a sep­a­rate sen­tenc­ing pro­ceed­ing before a three-judge pan­el. Nebraska death-row pris­on­ers have repeat­ed­ly, but unsuc­cess­ful­ly, argued that the state’s sen­tenc­ing pro­ce­dure vio­lates their Sixth Amendment right to a jury deter­mi­na­tion of all facts nec­es­sary to impose the death penal­ty. The U.S. Supreme Court has so far declined to review the issue.

In Boswell’s sen­tenc­ing tri­al, pros­e­cu­tors argued Loofe’s mur­der was ​“excep­tion­al­ly depraved” and there­fore war­rant­ed the death penal­ty. Judges Johnson and Ideus agreed, find­ing that Boswell had lured Loofe back to her apart­ment and, along with Trail, had bought the pow­er tools used to dis­mem­ber Loofe’s body in advance of the mur­der. ​“Boswell’s actions and words demon­strate that she had no regard for the life of Sydney Loofe beyond her own plea­sure,” Johnson said.

Judge Bataillon, how­ev­er, dis­agreed. ​“I could not find beyond a rea­son­able doubt that the State of Nebraska had met its bur­den of proof,” he said. ​“Nothing in this deci­sion dimin­ish­es the sense­less­ness of the mur­der of Sydney Loofe and the great pain it’s caused her fam­i­ly and friends.”

In addi­tion to the life sen­tence with­out parole for Loofe’s mur­der, the pan­el sen­tenced Boswell to a 50-year term for con­spir­a­cy to com­mit mur­der and an addi­tion­al two years for unlaw­ful dis­pos­al of humans remains.

“I believed he real­ly loved me,” she said, accord­ing to the Lincoln Journal Star. ​“Later, I was afraid of him. … Aubrey took from me what lit­tle spir­it I had left.”

Boswell’s Case For Life

During her sen­tenc­ing hear­ing in July, Boswell pre­sent­ed evi­dence that Boswell, who had been star high school ath­lete, spi­raled down­ward after being ver­bal­ly and emo­tion­al­ly abused by her col­lege coach, sex­u­al­ly assault­ed, sub­ject­ed to beat­ings and sex­u­al pun­ish­ments by a boyfriend who then sex­u­al­ly traf­ficked her on Backpage, where she met Trail. The defense argued that she act­ed under the emo­tion­al dom­i­nance of Trail, who was twice her age and whom the defense char­ac­ter­ized as a con man. A defense psy­chol­o­gist tes­ti­fied that Boswell suf­fered from PTSD and depres­sion stem­ming from her abusive relationships. 

In a state­ment to the pan­el, Boswell told the judges she felt trapped in her rela­tion­ship with Trail, who she said abused her and threat­ened to kill her daugh­ter. She plead­ed with the judges to spare her life for her 7‑year-old daughter’s sake.

Bailey’s defense coun­sel also argued that she should not be sen­tenced to death because of Nebraska’s fail­ure to have any plan in place for hous­ing female death row pris­on­ers. In a let­ter to the pros­e­cu­tion, Scott Frakes, Nebraska’s Director of Correctional Services, wrote, “[a]s Nebraska has nev­er had a woman sen­tenced to the death penal­ty, such a pol­i­cy has not been nec­es­sary.” Testifying in the penal­ty hear­ing, Frakes admit­ted that the state had not devel­oped a hous­ing plan for death-sen­tenced women and did not intend to devel­op one. ​“If a female were to receive such a sen­tence, we would ulti­mate­ly draft pol­i­cy lan­guage spe­cif­ic to what­ev­er those needs were,” he told the court.

Boswell’s defense coun­sel, Todd Lancaster, argued that if Boswell were sub­ject to the same con­di­tions as the men on Nebraska’s death row, ​“she would be housed for decades in restric­tive hous­ing” — soli­tary con­fine­ment — in cir­cum­stances amount­ing to cru­el and unusual punishment.