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Nebraska AG files motion in state supreme court to review electric chair ban

[JURIST] Nebraska Attorney General Jon Bruning [official website] on Tuesday filed a motion for rehearing [press release] asking the Nebraska Supreme Court to reconsider its recent decision banning the use of the electric chair [PDF text; JURIST report]. The motion listed five errors in the ruling as reasons why the court should rehear the case, including:

1. The ruling created a new procedure requiring the Attorney General to prove a new method of execution is constitutional. This overthrows 130 years of precedent set by the Nebraska Supreme Court holding that legislation is presumed to be constitutional.

2. The ruling overturned a long series of cases that say the Nebraska Constitution offers criminals no greater protection than the federal constitution. With the recent ruling, the court says the Nebraska Constitution offers criminals greater protection than the same language in our federal constitution.

3. The ruling erred in only looking to other federal court cases and other state legislatures to decide what "standards of decency" are in Nebraska. The ruling relied on no Nebraska statutes, no Nebraska court rulings and no other indicators of what Nebraskans think about the issue. The Nebraska Constitution isn't a statement of national values. It's a statement of Nebraska values. Other states don't set "standards of decency" for Nebraskans.

4. The ruling gave no clear guidance on what standard would be applied to evaluate a new method of execution. For example, the ruling speaks of "a substantial risk of unnecessary pain," but fails to say what type or level of "necessary" pain would be acceptable.

5. The high court decided this case on a state constitutional theory Raymond Mata never raised and the state was never given the opportunity to address.
Bruning said that the court "lost focus of the victims" in making its decision.

In State v. Mata, the Nebraska Supreme Court held that execution by electric chair is cruel and unusual punishment and therefore prohibited by the Nebraska constitution [text]. Last May, Nebraska's high court stayed the execution [JURIST report] of Carey Dean Moore [Amnesty profile] to consider whether death by electrocution is cruel and unusual punishment. The court issued the stay after Nebraska Sen. Ernie Chambers [official profile] requested that the death penalty process be reviewed before anyone else was put to death. Nebraska is the only state to solely rely on the electric chair for capital punishment. The Omaha World-Herald has more.

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