AGO 97025.

CourtNebraska
Nebraska Attorney General Opinions 1997. AGO 97025. DATE: April 11, 1997SUBJECT: LB422 - Death Penalty Issues REQUESTED BY: Senator Douglas KristensenWRITTEN BY: Don Stenberg, Attorney General You have written to me to obtain my "thoughts on some issues concerning LB422." In your letter you say that you are not requesting a formal written opinion from my office. It has been the practice of the Attorney General's Office under at least the last three Attorneys General not to give a private Attorney General's opinion to an individual Senator. It is my understanding that the reason for this policy was insistence by members of the Legislature that all Senators have access to the same legal information regarding a legislative bill at approximately the same time. Indeed, to this day, the Clerk of the Legislature is insistent that Attorney General's opinions to members of the Legislature be promptly provided to his office so that they may be shared with the entire Legislature as expeditiously as possible. By the same token, because of the importance of the issues involved and the possibility of mis-communication through verbal means, an oral response would not be appropriate for the important questions which you have raised. Accordingly, I am responding to your questions in the context of this formal Attorney General's opinion which will be shared equally with your colleagues by the Clerk of the Legislature. You first ask whether LB422 as amended is unconstitutionally vague. In my opinion, LB422 as amended is not unconstitutionally vague. I will provide you with a more extended analysis of this question if you so desire and if the schedule of the Legislature permits. You next ask whether LB422 "weakens or confuses Nebraska's death penalty statutes." The answer is yes. Under LB422 as amended, the death penalty may never be applied to a person who is "mentally retarded." Under current law, "mental defect" which includes mental retardation, is a mitigating circumstance already required to be weighted by the court when determining a sentence. However, "mental retardation" is not presently an outright bar to imposition of the death penalty. Under current law, the important question is "the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Under LB422 as amended, a...

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