40-year minimum alternative to juvenile life sentences advanced

After several days of debate, senators advanced a bill April 11 that would expand sentencing options for juveniles convicted of Class IA felonies.

Introduced by Omaha Sen. Brad Ashford, LB44 as currently amended would establish a new 40-year minimum sentencing option for a juvenile convicted of a Class IA felony. The only sentencing option currently available for juveniles convicted of such offenses is life imprisonment without the possibility of parole.

Ashford said April 8 that the bill would bring Nebraska into compliance with a 2012 U.S. Supreme Court ruling that found sentencing juveniles to life imprisonment without the possibility of parole to be a violation of the Eighth Amendment of the U.S. Constitution.

The court ruling also determined that mitigating factors should be taken into consideration when sentencing juveniles, Ashford said. Juveniles act impulsively, are easily influenced and often do not comprehend the severity of their actions, he said, but they are capable of rehabilitation as their brains mature.

A Judiciary Committee amendment, adopted 31-1, replaced the introduced copy of the bill, set a new 30-year minimum sentence and requires the sentencing court to consider mitigating factors. These would include the juvenile’s age at the time of the offense, their impetuosity, intellectual capacity, mental health status, family and community environment and ability to appreciate the risks and consequences of their conduct.

The amendment also would establish that offenders younger than 18 years old at the time that an offense was committed who were denied parole would be eligible for a parole hearing each year thereafter. The parole board must review and consider the juvenile’s:
• educational and court documents;
• level of participation in the offense;
• age at the time of the offense, level of maturity and intellectual capacity;
• ability to appreciate the risks and consequences of his or her conduct;
• efforts toward rehabilitation and participation in available rehabilitative and educational programs while incarcerated; and
• any other mitigating circumstance submitted by the juvenile.

Much of the debate focused on the proposed 30-year minimum sentence and some senators’ disdain for the possibility of early release for juveniles convicted of heinous crimes. Several amendments were considered that proposed different mandatory and minimum sentencing options.

Omaha Sen. Scott Lautenbaugh said the committee’s proposed minimum sentence was not mandatory, so a juvenile convicted of a heinous crime could earn “good time” and be eligible for parole after serving only 15 years.

Omaha Sen. Ernie Chambers disagreed, saying the parole board historically does not release juveniles when they first become eligible for parole.

“When you review how the parole board in Nebraska [previously] has ruled,” he said, “there is no likelihood that a person sentenced 30 years to life under this law is going to be let go in 15 years.”

Lautenbaugh brought an amendment, which was divided into two components for ease of debate.

One component, which failed on a 15-27 vote, would have eliminated from the bill the court’s requirement to consider mitigating factors when sentencing such juveniles.

The second component would have increased the proposed 30-year minimum sentence to 60 years. This proposal failed on a 21-23 vote.

Lautenbaugh also offered, and later withdrew, an amendment to establish a 50-year minimum sentence and a motion to bracket the bill until June 5.

Columbus Sen. Paul Schumacher introduced an amendment that would have eliminated the mitigation language for sentencing and parole considerations. Requiring the courts to mitigate such sentences could provide an automatic ruling in the defendant’s favor, he said.

Schumacher later withdrew his amendment and instead supported an amendment offered April 9 by
Omaha Sen. Beau McCoy, which would have established a 25-year mandatory minimum sentence in lieu of the proposed 30-year minimum.

“At least with this amendment, the process of an annual parole hearing will not start until after [convicted juveniles] have served at least 25 years,” he said.

Bellevue Sen. Sue Crawford opposed the amendment, saying that mandatory minimum sentences unfairly impact juveniles convicted of felonies other than homicide. Those juveniles are capable of rehabilitation, she said.

“The juveniles that fall in this lower end of sentencing are going to be the juveniles that we have the most expectations from,” she said. “At the lower end of the [sentencing] range is where we want the maximum amount of leverage so we can provide services and expect to see changes in their behavior.”

Ashford also opposed the amendment, saying debate was shifting from the original intent of the bill and that mandatory minimums for juveniles could be unconstitutional.

“Playing a numbers game does not get to the bottom of the issue of treating children differently than adults,” he said.

McCoy’s amendment failed on a 23-14 vote. Twenty-five votes are needed for adoption.

Holdrege Sen. Tom Carlson offered an amendment, adopted 30-3, which would establish a 40-year minimum sentence. He said the amendment was offered as a compromise and would provide a juvenile the possibility of parole after serving 20 years.

Ashford supported the amendment, saying it would benefit juveniles who have committed a serious offense.

“Forty years to life, in my view, is a responsible range of sentences that permits an early release for a juvenile,” he said. “It is a compromise for offenders who are not directly involved in a homicide but were convicted as an accessory.”

Chambers filed, and later withdrew, a motion to indefinitely postpone the bill.

The bill advanced from general file on a 30-2 vote.