Nebraska Supreme Court: Death-Penalty Repeal Bill Overturned by Voters Didn’t Invalidate Prisoners’ Death Sentences

The Nebraska Supreme Court has ruled that the 2015 leg­isla­tive repeal of the state’s death-penal­ty statute did not inval­i­date the death sen­tences of the pris­on­ers on the state’s death row because the repeal bill nev­er became law before it was reject­ed by a statewide voter referendum. 

In a deci­sion issued January 3, 2020, the court dis­missed a claim brought by death-row pris­on­er Marco Torres (pic­tured) that the legislature’s repeal of the death-penal­ty law changed his death sen­tence to life impris­on­ment and the vot­er ref­er­en­dum reim­posed death sen­tences on him and the oth­er death-row pris­on­ers in Nebraska. Under Nebraska law, the court said, the fil­ing of a peti­tion to inval­i­date a leg­isla­tive action sus­pends that action until the pub­lic votes to accept or reject that leg­isla­tive action. The repeal bill, L.B. 268, was sus­pend­ed by ​“the fil­ing of peti­tions on August 26, 2015,” four days before its sched­uled effec­tive date. Accordingly, the repeal law ​“nev­er went into effect,” the court said; the death penal­ty was nev­er rein­stat­ed; and the sen­tenc­ing sta­tus of Torres and the oth­er pris­on­ers never changed. 

Nebraska’s uni­cam­er­al leg­is­la­ture vot­ed three sep­a­rate times in 2015 in favor of abol­ish­ing the death penal­ty, becom­ing the first Republican-dom­i­nat­ed leg­is­la­ture in more than 40 years to vote to end cap­i­tal pun­ish­ment. A major­i­ty of the legislature’s 30 Republicans joined by 12 Democrats and an Independent supported repeal. 

After two pre­lim­i­nary votes in April and ear­ly May advanced the repeal bill to final con­sid­er­a­tion, the uni­cam­er­al leg­is­la­ture vot­ed 32 – 15 on May 20 to replace its death penal­ty with a sen­tence of life with­out pos­si­bil­i­ty of parole. Governor Pete Ricketts vetoed the bill, but a super­ma­jor­i­ty of the leg­is­la­ture vot­ed 30 – 19 on May 28 to over­ride the veto. Governor Ricketts then spear­head­ed an effort by a new­ly cre­at­ed enti­ty, Nebraskans for the Death Penalty, to place on the bal­lot a vot­er ref­er­en­dum that would stop the repeal from going into effect. The Governor per­son­al­ly con­tributed $200,000 and, in com­bi­na­tion with his father, secu­ri­ties investor and Chicago Cubs Board chair­man Thomas Ricketts, donat­ed approx­i­mate­ly one-third of all the mon­ey raised by Nebraskans for the Death Penalty to gath­er the sig­na­tures need­ed to place the ref­er­en­dum on the bal­lot. In November 2016, the vot­ers over­whelm­ing vot­ed to retain the state’s death penalty law.

Torres has pre­vi­ous­ly attempt­ed to chal­lenge his death sen­tence on the grounds that Nebraska’s three-judge sen­tenc­ing statute vio­lat­ed his Sixth Amendment right to have a jury decide any fact that could result in his being sen­tenced to death. The state court dis­missed that chal­lenge in 2018, say­ing he had wait­ed too long before raising it.