Nebraska Supreme Court finds criminal reform act constitutional – JURIST
The Supreme Court of Nebraska on Friday found provisions of a challenged criminal reform act, Legislative Bill 50 (LB50), constitutional. LB50, passed in 2023, is just one of a series of reform legislation enacted in recent years by Nebraska. State Attorney General Michael Hilgers took issue with LB50, arguing the provisions abridge the power of the executive branch to make commutations and is therefore unconstitutional.
In 2023, Hilgers was asked for an opinion on the constitutionality of LB50’s reforms, which was requested by the director of the Department of Correctional Services (DCS). Hilgers believes that the expansion of retroactive parole eligibility, working in tandem with Nebraska’s statute that extends good time to parolees, is effectively a commutation. He believes this is a power that should be reserved exclusively for the Board of Pardons and is a violation of the separation of powers. In response to the opinion, DCS temporarily halted the advancement of people to the Board of Parole for review.
“Good time” is described in the court’s opinion as a long-held standard of good behavior when a prisoner follows rules and orders, performing their duties in a peaceable and orderly manner. The Nebraska court reasons that if they were to reduce the provisions dealing with good time parole, a violation of ex post facto principles may occur due to the fact that when prisoners were sentenced, they were sentenced under a former understanding of good time. This would be a violation of due process rights.
Hilgers also took issue with the geriatric parole provision that allowed people older than 75 who have served at least 15 years of their sentence to become eligible for parole. However, the court reasoned that the Board of Parole has the final say in when someone becomes eligible for geriatric parole. The board must simply take into consideration the new geriatric parole provision when making their determinations and need not strictly apply them. The geriatric parole provision has since been codified into Nebraska statute.
The finding that LB50 is constitutional will give 529 people an earlier date for parole eligibility, 929 people who already had a parole date will have that date become earlier, and 345 people will become eligible for parole for the first time.
