The attorney general's announcement came one day after state Sen. Beau McCoy announced the formation of a new group, Nebraskans for Justice, which will look into a citizen-led ballot initiative to reinstate capital punishment.The state's referendum process allows citizens to suspend a law if they can collect signatures from 10 percent of Nebraska's registered voters in the 90 days before the law goes into effect.
Death penalty supporters also have the option to gather signatures from 5 percent of registered voters, which would place the issue on the ballot but wouldn't keep the law from going into effect.
In either case, voters would decide the death penalty's fate during the next statewide election in 2016.
McCoy said he would prefer a third option that would give organizers more time: a petition drive for a constitutional amendment to restore the ultimate punishment.
I Googled "Nebraskans for Justice," and it appears that name is taken, so they might need a different name.
Nebraska's Attorney General believes the repeal is unconstitutional to the extent that the legislature modifies existing sentences.
Cf. Plaut v. Spendthrift Farms.
Plaut is a nice theory, but at least as applied to legislatures applying reduced sentences to prior crimes, it runs into too much established practice.
Judges expanding constitutional limitations to strike down a practice that has always been considered consistent with the constitution is the essence of judicial activism, and I have spent much of my career fighting against it. I'm not about to switch merely because I disagree with the legislature's decision.
The more important question is whether there is going to be a referendum to repeal the abolition bill. I think there is an excellent chance such a referendum would win if it can get on the ballot.
Perhaps there is a distinction to be made between the crimes themselves and judgments. Some state constitutions have stronger separation of powers provisions than the federal, e.g., Indiana and Michigan.
Who is available to provide funding for what I believe would be a justified and interesting-to-watch referendum effort?
That is indeed the problem. Legislation by petition and popular vote was originally intended to be a way for the grass roots to overcome political influence of the "robber barons." The reality today is that gathering that many signatures requires a lot of money.
Soft-on-crime has become an elitist cause funded by such deep-pocketed donors as George Soros. Fighting against the drive to forget and repeat the mistakes of the 60s and 70s is much more of a grass roots effort, and it is far more difficult to find donors willing and able to write the big checks.