LB339 LB339
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 339
Introduced by McKinney, 11.
Read first time January 12, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to juveniles; to amend sections 28-105.02,
2 29-401, 43-248.01, and 43-249, Reissue Revised Statutes of Nebraska,
3 and sections 28-105.01, 29-2204, 43-245, 43-250, 43-253, and
4 43-2,129, Revised Statutes Cumulative Supplement, 2022; to require
5 confidentiality for criminal prosecutions of minors tried as adults
6 and certain adjudications under the Nebraska Juvenile Code; to
7 change provisions relating to sentences for crimes committed by
8 persons under twenty-two years of age; to extend jurisdiction under
9 the Nebraska Juvenile Code to twenty-two years of age; to provide
10 requirements for custodial interrogations of juveniles and young
11 adults; to define terms; to prohibit the use of certain statements
12 in court proceedings as prescribed; to provide for using and
13 reimbursing day reporting and evening reporting centers for
14 juveniles; to prohibit sending juveniles out-of-state as prescribed;
15 to establish the family resource and juvenile assessment center
16 pilot program; to eliminate obsolete provisions; to harmonize
17 provisions; and to repeal the original sections.
18 Be it enacted by the people of the State of Nebraska,
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1 Section 1. (1) This section applies beginning January 1, 2024.
2 (2) Any criminal prosecution of a person who was under eighteen
3 years of age when the alleged offense was committed shall be conducted in
4 such a manner as to maintain the confidentiality of the identity of the
5 defendant. This applies to all stages of such proceedings, including
6 before, during, or after trial, sentencing, and post-conviction
7 proceedings.
8 (3) A court shall release information required to be confidential by
9 this section:
10 (a) To any individual; public or private agency, institution,
11 facility, or clinic; or governmental entity which is providing services
12 directly to the defendant;
13 (b) To any court which has jurisdiction of the defendant upon such
14 court's request;
15 (c) Upon written request by the office of Public Counsel, including
16 the office of Inspector General of Nebraska Child Welfare and office of
17 Inspector General of the Nebraska Correctional System;
18 (d) To any person, at the request of the defendant;
19 (e) To law enforcement officers, county attorneys, and city
20 attorneys;
21 (f) To the Nebraska Probation System, the Department of Correctional
22 Services, a jail, or other detention facility as necessary for the
23 custody and care of such defendant;
24 (g) To the Department of Health and Human Services or a contract
25 facility or provider when the defendant is undergoing competency
26 restoration as provided in section 29-1823;
27 (h) To persons engaged in bona fide research, with the permission of
28 the court or the State Court Administrator, only if the research results
29 in no disclosure of the defendant's identity and protects the
30 confidentiality of the defendant; and
31 (i) To a law enforcement agency if the defendant applies for
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1 employment with the law enforcement agency.
2 (4) Any person receiving confidential information under subsection
3 (3) of this section shall maintain the confidentiality of such
4 information and of the defendant's identity.
5 (5) This section does not apply to presentence investigation
6 reports, the confidentiality of which are governed by section 29-2261.
7 (6) Nothing in this section shall be construed to restrict
8 dissemination of information about a defendant who is a fugitive from
9 justice or otherwise missing.
10 Sec. 2. Section 28-105.01, Revised Statutes Cumulative Supplement,
11 2022, is amended to read:
12 28-105.01 (1) Notwithstanding any other provision of law, the death
13 penalty or life imprisonment shall not be imposed upon any person who was
14 under the age of twenty-two eighteen years at the time of the commission
15 of the crime.
16 (2) Notwithstanding any other provision of law, the death penalty
17 shall not be imposed upon any person with an intellectual disability.
18 (3) As used in subsection (2) of this section, intellectual
19 disability means significantly subaverage general intellectual
20 functioning existing concurrently with deficits in adaptive behavior. An
21 intelligence quotient of seventy or below on a reliably administered
22 intelligence quotient test shall be presumptive evidence of intellectual
23 disability.
24 (4) If (a) a jury renders a verdict finding the existence of one or
25 more aggravating circumstances as provided in section 29-2520 or (b)(i)
26 the information contains a notice of aggravation as provided in section
27 29-1603 and (ii) the defendant waives his or her right to a jury
28 determination of the alleged aggravating circumstances, the court shall
29 hold a hearing prior to any sentencing determination proceeding as
30 provided in section 29-2521 upon a verified motion of the defense
31 requesting a ruling that the penalty of death be precluded under
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1 subsection (2) of this section. If the court finds, by a preponderance of
2 the evidence, that the defendant is a person with an intellectual
3 disability, the death sentence shall not be imposed. A ruling by the
4 court that the evidence of diminished intelligence introduced by the
5 defendant does not preclude the death penalty under subsection (2) of
6 this section shall not restrict the defendant's opportunity to introduce
7 such evidence at the sentencing determination proceeding as provided in
8 section 29-2521 or to argue that such evidence should be given mitigating
9 significance.
10 Sec. 3. Section 28-105.02, Reissue Revised Statutes of Nebraska, is
11 amended to read:
12 28-105.02 (1) Notwithstanding any other provision of law, the
13 penalty for any person convicted of a Class IA felony for an offense
14 committed when such person was under the age of twenty-two eighteen years
15 shall be a maximum sentence of not greater than eighty years' life
16 imprisonment and a minimum sentence of not greater less than forty years'
17 imprisonment.
18 (2) Notwithstanding any other provision of law, the penalty for any
19 person convicted of a Class IB felony for an offense committed when such
20 person was under the age of twenty-two years shall be a maximum sentence
21 of not greater than sixty years' imprisonment and a minimum sentence of
22 not greater than twenty years' imprisonment, except as provided in
23 section 28-319.01.
24 (3) (2) In determining the sentence of a convicted person under
25 subsection (1) of this section, the court shall consider mitigating
26 factors which led to the commission of the offense. The convicted person
27 may submit mitigating factors to the court, including, but not limited
28 to:
29 (a) The convicted person's age at the time of the offense;
30 (b) The impetuosity of the convicted person;
31 (c) The convicted person's family and community environment;
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1 (d) The convicted person's ability to appreciate the risks and
2 consequences of the conduct;
3 (e) The convicted person's intellectual capacity; and
4 (f) The outcome of a comprehensive mental health evaluation of the
5 convicted person conducted by an adolescent mental health professional
6 licensed in this state. The evaluation shall include, but not be limited
7 to, interviews with the convicted person's family in order to learn about
8 the convicted person's prenatal history, developmental history, medical
9 history, substance abuse treatment history, if any, social history, and
10 psychological history.
11 Sec. 4. Section 29-401, Reissue Revised Statutes of Nebraska, is
12 amended to read:
13 29-401 Every sheriff, deputy sheriff, marshal, deputy marshal,
14 security guard, police officer, or peace officer as defined in
15 subdivision (15) of section 49-801 shall arrest and detain any person
16 found violating any law of this state or any legal ordinance of any city
17 or incorporated village until a legal warrant can be obtained, except
18 that (1) any such law enforcement officer taking a juvenile under the age
19 of eighteen years into his or her custody for any violation herein
20 defined shall proceed as set forth in sections 43-248, 43-248.01, 43-250,
21 43-251, 43-251.01, and 43-253 and (2) the court in which the juvenile is
22 to appear shall not accept a plea from the juvenile until finding that
23 the parent, guardian, or custodian parents of the juvenile has have been
24 notified or that reasonable efforts to notify such person has parents
25 have been made as provided in section 43-250.
26 Sec. 5. (1) For purposes of this section, young adult means a
27 person who is eighteen years of age or older and younger than twenty-two
28 years of age.
29 (2) All law enforcement personnel or other governmental officials
30 having custody of any young adult shall inform the young adult, using
31 developmentally appropriate language and without unnecessary delay, of
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1 such young adult's right to call or consult an attorney who is retained
2 by or appointed on behalf of such young adult or whom the young adult may
3 desire to consult and, except when exigent circumstances exist, shall
4 permit such young adult to call or consult such attorney without delay.
5 An attorney shall be permitted to see and consult with the young adult in
6 custody alone and in private at the place of custody.
7 (3) Before initiating a custodial interrogation of young adult, law
8 enforcement personnel shall provide an advisement to the young adult in
9 substantially the following form:
10 "1. You have the right to remain silent, which means you do not have
11 to say anything to me unless you want to. It is your choice.
12 2. If you choose to talk to me, whatever you tell me I can tell a
13 judge in court.
14 3. You have the right to have your parent, guardian, or custodian
15 with you while you talk to me.
16 4. You have the right to have a lawyer with you while you talk to
17 me. You may have the right to get a free lawyer. If you get a lawyer, he
18 or she can help you if you decide that you want to talk to me.
19 5. These are your rights. Do you understand what I have told you?
20 6. Do you want to talk to me?"
21 (4) A peace officer who takes a young adult into custody shall
22 immediately take reasonable measures to notify the young adult's parent,
23 guardian, custodian, or adult relative. The peace officer shall describe
24 to the young adult the efforts the peace officer has made.
25 (5) If a young adult requests to speak to a parent, guardian,
26 custodian, or attorney before or during a custodial interrogation, the
27 custodial interrogation of the young adult must cease until such other
28 person arrives.
29 (6)(a) Except as provided in subdivision (6)(b) of this section,
30 upon arrival of a parent, guardian, or custodian to whom the young adult
31 has requested to speak, the peace officer shall without unnecessary delay
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1 permit such other person to see and consult with the young adult alone
2 and in private at the place of custody. Prior to any custodial
3 interrogation with such person present, the peace officer shall provide
4 the advisement described in subsection (3) of this section to the young
5 adult and such other person.
6 (b) Subdivision (6)(a) of this section does not apply when there is
7 reasonable suspicion to believe that the parent, guardian, or custodian
8 is involved in a crime related to the young adult's detention or is a
9 danger to the young adult.
10 (7) Any statement of a young adult taken in violation of this
11 section shall not be admissible against the young adult in any criminal
12 proceeding or any proceeding under the Nebraska Juvenile Code.
13 (8) For purposes of this section, custodial interrogation has the
14 meaning prescribed to it under the Fourth and Fifth Amendments to the
15 Constitution of the United States and Article I, sections 3 and 7, of the
16 Constitution of Nebraska, as interpreted by the Supreme Court of the
17 United States and the Nebraska Supreme Court.
18 Sec. 6. Section 29-2204, Revised Statutes Cumulative Supplement,
19 2022, is amended to read:
20 29-2204 (1) Except as provided in subsection (2) of this section and
21 except when a term of life imprisonment is required by law, in imposing a
22 sentence upon an offender for any class of felony other than a Class III,
23 IIIA, or IV felony, the court shall fix the minimum and the maximum terms
24 of the sentence to be served within the limits provided by law. The
25 maximum term shall not be greater than the maximum limit provided by law,
26 and:
27 (a) The minimum term fixed by the court shall be any term of years
28 less than the maximum term imposed by the court; or
29 (b) The minimum term shall be the minimum limit provided by law.
30 (2) In imposing a sentence for a Class IA or IB felony upon an
31 offender who was under twenty-two years of age at the time of the
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1 offense, the court shall fix the minimum and the maximum terms of the
2 sentence as provided in section 28-105.02.
3 (3) (2) When a maximum term of life is imposed by the court for a
4 Class IB felony for an offender who was twenty-two years of age or older
5 at the time of the offense, the minimum term fixed by the court shall be:
6 (a) Any term of years not less than the minimum limit provided by
7 law; or
8 (b) A term of life imprisonment.
9 (4) (3) When a maximum term of life is imposed by the court for a
10 Class IA felony for an offender who was twenty-two years of age or older
11 at the time of the offense, the minimum term fixed by the court shall be
12 a : (a) A term of life imprisonment. ; or
13 (b) Any term of years not less than the minimum limit provided by
14 law after consideration of the mitigating factors in section 28-105.02,
15 if the defendant was under eighteen years of age at the time he or she
16 committed the crime for which he or she was convicted.
17 (5) (4) When the court is of the opinion that imprisonment may be
18 appropriate but desires more detailed information as a basis for
19 determining the sentence to be imposed than has been provided by the
20 presentence rep