Nebraska Supreme Court Rejects Challenge to State’s Capital Sentencing Procedures

The Nebraska Supreme Court has upheld the state’s death penal­ty law against a claim that its death-sen­tenc­ing pro­ce­dure vio­lates cap­i­tal defen­dants’ Sixth Amendment right to a jury trial.

In a deci­sion issued on April 3, 2020, the court unan­i­mous­ly affirmed a tri­al court rul­ing dis­miss­ing death-row pris­on­er Jeffrey Hessler​’s chal­lenge to the state’s three-judge cap­i­tal sen­tenc­ing process. Under Nebraska law, if a defen­dant is con­vict­ed of cap­i­tal mur­der, a jury deter­mines whether aggra­vat­ing fac­tors exist that make the defen­dant eli­gi­ble for a death sen­tence. If the jury finds at least one aggra­vat­ing fac­tor, a three-judge pan­el weighs the aggra­vat­ing and mit­i­gat­ing cir­cum­stances and deter­mines the sen­tence of life with­out parole or death. Hessler (pic­tured) argued that Nebraska’s approach to cap­i­tal sen­tenc­ing was incom­pat­i­ble with the U.S. Supreme Court’s pro­nounce­ment in 2016 in Hurst v. Florida that the Sixth Amendment guar­an­teed a cap­i­tal defen­dant the right to have a jury deter­mine all facts nec­es­sary for a death sen­tence to be imposed. 

The court ruled that Hessler’s argu­ment was untime­ly and there­fore pro­ce­du­ral­ly barred, and added that under the recent U.S. Supreme Court deci­sion in McKinney v. Arizona, there is no con­sti­tu­tion­al require­ment that the jury be the ulti­mate sen­tencer in a death penalty case.

The Hurst deci­sion struck down Florida’s cap­i­tal sen­tenc­ing scheme, which resem­bled Nebraska’s in that a judge, rather than a jury, found aggra­vat­ing and mit­i­gat­ing cir­cum­stances and made the final deci­sion about whether to impose a death sen­tence. The Court said, ​“The Sixth Amendment requires a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death. A jury’s mere rec­om­men­da­tion is not enough.” Hessler also argued that, because Nebraska is the only state that allows a three-judge pan­el to deter­mine a death sen­tence, the sen­tenc­ing law ​“vio­lates evolv­ing stan­dards of decen­cy under the Eighth Amendment.”

The Nebraska Supreme Court reject­ed Hessler’s argu­ment on time­li­ness grounds, say­ing that Hurst had sim­ply applied a prin­ci­ple of law announced in the Supreme Court’s June 2002 deci­sion in Ring v. Arizona. Therefore, the court said, Hurst did not restart the time lim­its for Hessler to present his chal­lenge. However, “[f]or the sake of com­plete­ness,” the court not­ed that ​“even if Hessler’s claims were not time-barred, they would not enti­tle him to post-conviction relief.” 

Quoting the U.S. Supreme Court’s 2020 deci­sion in McKinney v. Arizona, which was decid­ed after oral argu­ment in Hessler’s case, the Nebraska court wrote: ​“Under Ring and Hurst, a jury must find the aggra­vat­ing cir­cum­stance that makes the defen­dant death eli­gi­ble. But impor­tant­ly, in a cap­i­tal sen­tenc­ing pro­ceed­ing just as in an ordi­nary sen­tenc­ing pro­ceed­ing, a jury (as opposed to a judge) is not con­sti­tu­tion­al­ly required to weigh the aggra­vat­ing and mit­i­gat­ing cir­cum­stances or to make the ulti­mate sen­tenc­ing deci­sion with­in the rel­e­vant sentencing range.”