Posted by
Husker Neocon on Saturday, February 09, 2008 2:33:36 PM
On Friday Feb. 8th, the Nebraska Supreme Court ruled Nebraska's sole method of execution unconstitutional.
In a 6-1 majority, the court ruled that the electric chair violated the Cruel and unusual clause of the Nebraska State constitution. The is patterned after the 8th amendment to the US Constitution.
In the sole dissent, Chief Justice Mike Heavican said that the majority ruled using their personal views instead of interpreting the law.
Heavican wrote the Nebraska court has "long held" the state constitution's ban on cruel and unusual punishment is no more stringent than that of the Eighth Amendment.Yet, he said, the court Friday determined the electric chair violated the state constitution, even though the U.S. Supreme Court has said electrocution is not cruel and unusual punishment."Thus," he wrote, "if the Nebraska Constitution does not require anything more than the federal Constitution regarding cruel and unusual punishment, and the U.S. Supreme Court has indicated that electrocution is not cruel and unusual under the federal Constitution, I cannot see how electrocution violates the Nebraska Constitution.
Heavican, in his dissent, said the "most troublesome aspect" of the majority ruling was its use of an "evolving-standard-of-decency" to decide constitutionality. The standard, he said, can be a highly subjective one. Moreover, how does one determine the standard, he asked.
Attorney General Jon Brunning said he will ask the court to re-consider. "Nebraskans overwhelmingly support the death penalty, and justice demands that our state has a constitutional method of execution."
The Death Penalty is supported by the vast number of Nebraska residents. Attempts at changing the method to lethal injection have been stalled in the legislature (mostly by fillibuster of Ernie Chambers).
And, currently Sen. Chambers has introduced a bill to abolish the death penalty (Gov Heineman says he'll veto any bill abolishing the death penalty).
Legislation from the bench has been practiced many times by Nebraska's Supreme Court. DWI law involving testing after arrest has been overturned with instructions on how it should be done. It goes on and on. With court members staffed by Bob Kerry and Ben Nelson, we can't expect much more.