Supreme Court’s Less Famous Rulings Have Impact in Nebraska

Details: 17 August 2012

When the U.S. Supreme Court issued its term-ending rulings during the last week in June, the greatly anticipated one of June 28 pertaining to the Patient Protection and Affordable Care Act received extensive attention. But three days earlier, the Court issued two other rulings of considerable public-policy significance.

Both have implications in and for Nebraska.

In the combined cases of Jackson v. Hobbs (Arkansas) and Miller v. Alabama, the Supreme Court ruled 5-4 that any state law that mandates a sentence of life-without parole for individuals convicted of murder even when they were younger than 18 at the time of committing the crime violates the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment.

The majority concluded that mandating life-without-parole in these circumstances categorically precludes consideration of the offender’s young age or any other mitigating circumstances. Moreover, the relative rarity of such sentences in practice reflects a national consensus regarding the reduced criminal culpability of children and juveniles.

Current Nebraska law mandates life without parole for those convicted of first-degree murder (when it is not a capital crime by virtue of aggravating factors) or felony murder and makes no exception for the offender’s age. The Legislature is going to have to change that law, due to the Supreme Court’s ruling. The ruling doesn’t forbid life-without-parole, but it has to be optional, not mandatory for the sentencing court.

Currently, there are 26 lifers in Nebraska prisons who committed a murder or participated in a murder while under the age of 18. Presumably, the Legislature will also have to decide what to do about them. Eight have been incarcerated for 30 years or more.

In 2011, Senator Brenda Council introduced two legislative bills on this topic. LB 202 proposed to provide such prisoners an opportunity, after no less than 20 years of incarceration, to petition for a commutation to a parole-eligible sentence. LB 203 proposed to prohibit life without parole any time the convicted individual was under 18 at the time of the crime and to instead impose minimum terms of lengthy duration. Neither bill made it through the legislative process.

In Arizona v. United States, the other ruling of June 25, the Supreme Court struck down as unconstitutional three of four challenged sections of Arizona’s infamous S.B. 1070 efforts to enforce Federal immigration policy. The sections invalidated were ones that created state crimes for an unauthorized alien to fail to comply with federal alien-registration requirements and to seek or engage in work, and that authorized warrantless arrests of any unauthorized alien believed by probable cause to have committed any public offense that would make him or her removable from the U.S.

The Supreme Court unanimously upheld the other provision challenged by the Federal government’s lawsuit: section 2(B), the so-called "show your papers" law. It stated: "for any lawful stop, detention or arrest made by a law enforcement official… in the enforcement of any other law or ordinance… where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation." Emphasis is added to indicate that the mandate is pretty "watered down."

In enforcing this provision, law-enforcement officers were not allowed to consider race, color or national origin except to the extent permitted by the Constitution.

A legislative bill akin to the Arizona law was introduced in the Nebraska Legislature in 2011. LB 48 had a probative public hearing in front of the Judiciary Committee, which found the bill abundantly problematic and did nothing more with it during both the 2011 and 2012 sessions. It expired with the end of the latter.

LB 48 included provisions like the invalidated state crimes. It did not include authorization for warrantless arrests.

Per LB 48, "show your papers" was stated as follows: "A peace officer shall determine the immigration status of a person who has been lawfully stopped, detained, or arrested when reasonable suspicion exists that the person is unlawfully present in the United States." Its approach to dissuading racial profiling was this statement: "For purposes of the act, a peace officer’s reasonable suspicion shall not be based solely upon a person’s race, color, religion, sex, or national origin." Again, emphasis is added; this time for comparative purposes.

The principal introducer of LB 48, Fremont senator Charlie Janssen, has reportedly declared that the Supreme Court’s ruling upholding Arizona’s "show your papers" requirement is a victory for his side of the policy debate and that it should embolden Nebraska legislators, presumably himself included, to introduce another immigration enforcement bill in 2013.

Even if better drafted than LB 48 was, a new, follow-up bill it won’t be scrutinized or challenged any less. After all, as Justice Kennedy wrote: "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied…." That would include civil-rights challenges. What’s more, copycat laws from at least four other states—Alabama, Georgia, South Carolina and Utah—are already under legal challenge and it might not be too long before the Supreme Court revisits its jurisprudence on state attempts to enforce Federal policy.