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.

U.S. Court of Appeals Lifts Injunction on Federal Executions, Returns Case to Lower Court for Further Litigation

A badly divided federal court of appeals has lifted a court order that had prevented the federal government from resuming executions after a hiatus of more than 16 years.

In a fractured ruling with three separate opinions and no rationale for its decision commanding a majority, a panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 on April 7, 2020 to vacate the preliminary injunction that had blocked the federal government from carrying out four executions in December 2019 and January 2020. The court remanded the case to the D.C. federal district court to decide a series of additional unresolved issues in the case.

The ruling came in a case in which federal death-row prisoners had filed a multi-pronged challenge to the legality and constitutionality of a new execution protocol issued by the U.S. Department of Justice in July 2019. When the protocol was released, Attorney General William Barr also announced that execution dates had been scheduled for five prisoners. One of those prisoners, who had received a stay of execution on unrelated grounds, did not join the execution challenge.

The court’s per curiam opinion stated “Each member of the panel takes a different view of what the FDPA [Federal Death Penalty Act] requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.” The court’s decision divided along partisan lines. Judges Gregory Katsas and Neomi Rao, both appointed by President Donald Trump, voted to vacate the injunction and allow the federal government to schedule executions. Judge David Tatel, appointed by President Bill Clinton, dissented, arguing that the proposed federal protocol violates the FDPA. The panel left the district court to decide the prisoners’ challenges to the proposed execution drugs brought under the Food, Drug, and Cosmetic Act and the Controlled Substances Act, as well as claims related to the constitutionality of the protocol and a claim that the protocol is arbitrary and capricious under the federal Administrative Procedures Act.

In a statement, Cate Stetson, who argued the case for the prisoners in the circuit court, suggested that the prisoners would seek reconsideration by the full appeals court. “The district court’s injunction was aimed at preventing the government from ‘short-circuiting legitimate judicial process’ and serving the public interest by ‘attempting to ensure that the most serious punishment is imposed lawfully,’” she said. “Without action by the full court, the panel’s splintered decision will allow the government to execute prisoners even while serious questions remain unanswered about the legality of the government’s execution procedures under federal law. As Judge Tatel wrote in his dissenting opinion, ‘Had Congress intended to authorize the Attorney General to adopt a uniform execution protocol, it knew exactly how to do so.’”

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