noting that the expressed purpose of proportionality review “is to ensure that the death penalty should be applied uniformly and not arbitrarily”
How later courts described this case
- noting that the expressed purpose of proportionality review “is to ensure that the death penalty should be applied uniformly and not arbitrarily”
- finding universe of death-sentenced cases to be “a threshold requirement for comparative study”
- The proportionality review made under the requirements of Neb.Rev.Stat. §§ 29-2521.01-03 is limited to a comparison of the facts and circumstances of the death penalty-imposed case under review with those of all applicable cases in which the death penalty as opposed to life imprisonment was imposed
- expanding universe beyond cases with sentences of death invites appellate court to enter into “intolerable speculation”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Chambers, 233 Neb. 235 (1989)
224 Neb. 282, 330 , 399 N.W.2d 706, 737 (1986), overruled on other grounds, State v. Chambers, 233 Neb. 235 , 444 N.W.2d 667
Overruled on other grounds by State v. Garcia, 315 Neb. 74 (2023)
224 Neb. 282 , 399 N.W.2d 706 (1986), overruled on other grounds, State v. Garcia, 315 Neb. 74 , 994 N.W.2d 610
The opinion
White, J.,
concurring.
This court has struggled to apply the provisions of Neb. Rev. Stat. §§ 29-2521.01 et seq. (Reissue 1985) since their passage. The difficulties, both constitutional and semantic, have been extreme, as is well pointed out in the majority opinion. I agree that to compare a case in which there is a finding of guilt of first degree murder with a conviction of a lesser homicide is not only difficult, it is impossible. Any case where the requisites of either felony murder or intentional, premeditated murder have not been found is as different as night to day from a case where such requisites are judicially determined, if for no other reason than *332 the fact of judicial determination of the requisite facts in one case and not the other.
We must adhere to our role as an appellate court. The findings of fact by a jury or a judge in a jury waived case or on the acceptance of a plea are binding on us. We do not have the authority to determine that the crime was of a higher degree. We may not, in a matter so vital as the imposition or nonimposition of the death penalty, speculate as to decisions of the executive branch in not seeking conviction of a higher degree of homicide, nor by our decision question the factual determination of the fact finder.
I do not, however, agree that the only reasonable or possible application of § 29-2521.01 is to limit the comparison to cases in which the death penalty has been imposed. The penalty for first degree murder is either life imprisonment or death. That sentence decision is considered in all convictions for first degree murder. It seems to me that the rejection of a sentence of death by the judge or panel of judges is as important to proportionality as the imposition of such a penalty. The task of comparison, though difficult, is neither impossible nor constitutionally prohibited, and, therefore, we are commanded to make that comparison. I state further, however, that comparing all first degree murder cases with the subject case, the sentence is not disproportionate. I therefore concur in the result.
Shanahan, J., joins in this concurrence.