LB432 LB432
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 432
Introduced by McKinney, 11.
Read first time January 13, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to criminal justice; to amend sections 28-116,
2 28-507, 28-518, 29-2204.02, 29-2221, 29-2263, 29-3603, 81-1850,
3 83-175, and 83-1,110, Reissue Revised Statutes of Nebraska, and
4 sections 28-101, 28-105, 28-416, 28-1351, 28-1354, 29-2204, 81-1848,
5 83-184, 83-1,107, 83-1,110.02, 83-1,111, 83-1,114, 83-1,122.01,
6 83-1,135, and 83-1,135.02, Revised Statutes Cumulative Supplement,
7 2022; to adopt the Second Look Act; to change provisions regarding
8 mandatory minimums, penalties and provisions relating to controlled
9 substances, theft, and burglary, sentencing, set asides, and
10 pretrial diversion; to provide for release for medical treatment; to
11 provide for good time for offenders serving mandatory minimum terms;
12 to provide for parole for offenders who have served twenty-five
13 years of their sentences; to change provisions relating to parole
14 and medical parole; to provide for geriatric parole; to provide
15 duties for courts, the Board of Parole, the State Court
16 Administrator, and the Department of Correctional Services; to
17 provide for applicability; to define terms; to harmonize provisions;
18 to provide severability; and to repeal the original sections.
19 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 11 of this act shall be known and may be
2 cited as the Second Look Act.
3 Sec. 2. For purposes of the Second Look Act:
4 (1) Board means the Board of Pardons;
5 (2) Committee means the Commutation Review Committee;
6 (3) Department means the Department of Correctional Services;
7 (4) Incarcerated individual means an individual serving a sentence
8 in a department facility;
9 (5) Petition means a petition requesting that the committee
10 recommend a sentence reduction to the board pursuant to the Second Look
11 Act;
12 (6) Prosecutor means the county attorney or other prosecuting office
13 or agency that was responsible for prosecuting the offenses that resulted
14 in the sentence or sentences that are the subject of a petition or the
15 successor of such office or agency; and
16 (7) Public defender means the office of the public defender serving
17 the county in which the committee holds hearings under the Second Look
18 Act.
19 Sec. 3. (1) The Commutation Review Committee is created. The
20 committee shall consist of one retired judge, one formerly incarcerated
21 individual, and one attorney who has worked as a public defender. The
22 committee members shall be appointed by the chairperson of the Judiciary
23 Committee of the Legislature from nominations supplied by Judiciary
24 Committee members.
25 (2) Members of the Commutation Review Committee shall serve for
26 terms of four years, except that for the initial appointments to the
27 committee, one member shall be appointed for a term of two years, one
28 member shall be appointed for a term of three years, and one member shall
29 be appointed for a term of four years. Members may be reappointed. Any
30 initial members who are reappointed shall be reappointed for terms of
31 four years.
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1 (3) Any vacancy occurring otherwise than by expiration of a term
2 shall be filled for the remainder of the unexpired term in the same
3 manner as the original appointment.
4 (4) A member of the Commutation Review Committee may be removed for
5 good cause by a majority vote of the Judiciary Committee.
6 (5) Members of the Commutation Review Committee shall serve without
7 compensation, but they shall be entitled to receive reimbursement for
8 expenses incurred incident to such service as provided in sections
9 81-1174 to 81-1177.
10 Sec. 4. (1) An incarcerated individual serving a sentence of
11 imprisonment of more than fifteen and one-half years for an offense
12 committed when the individual was twenty-five years of age or younger may
13 file a petition under the Second Look Act after serving fifteen and one-
14 half years of such sentence.
15 (2) An incarcerated individual serving a sentence of imprisonment of
16 more than twenty and one-half years for an offense committed when the
17 individual was twenty-six years of age or older may file a petition under
18 the Second Look Act after serving twenty and one-half years of such
19 sentence.
20 (3) An individual described in subsection (4) of section 5 of this
21 act may file a petition on behalf of an incarcerated individual who is
22 eligible under subsection (1) or (2) of this section.
23 (4) If a petition is denied by the committee or a recommendation of
24 the committee is denied by the board, a petition concerning the same
25 sentence or sentences shall not be filed until at least two years after
26 the date of such denial, except that the committee may require a longer
27 waiting period of no more than five years from the date of such denial.
28 (5) If the board grants a sentence reduction under the Second Look
29 Act, a petition concerning the same sentence or sentences shall not be
30 filed until at least two years after the date such reduction was granted.
31 (6) In the case of an incarcerated individual who would otherwise be
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1 ineligible to file a petition under this section, a petition may
2 nonetheless be filed either by the prosecutor or by the individual with
3 the consent of the prosecutor. This subsection shall apply regardless of
4 the number of years the individual has spent in custody.
5 Sec. 5. (1)(a) For each incarcerated individual sentenced to more
6 than fifteen and one-half years' imprisonment, the department, not later
7 than thirty days after the date on which the fifteenth year of such
8 imprisonment begins, shall provide written notice of the individual's
9 rights under the Second Look Act. Such written notice shall be provided
10 to the incarcerated individual and the public defender.
11 (b) The department shall provide such written notice to the
12 incarcerated individual and public defender again not later than thirty
13 days after the date on which an incarcerated individual has served twenty
14 years of a sentence of imprisonment.
15 (c) For prisoners serving sentences of imprisonment who have already
16 served fifteen and one-half years as of the effective date of this act,
17 the department shall provide the notice described in subdivision (1)(a)
18 of this section on or before November 1, 2023.
19 (2) The public defender is appointed to represent all incarcerated
20 individuals eligible to file a petition under section 4 of this act. The
21 public defender may seek assistance from private attorneys to carry out
22 this duty.
23 (3)(a) Within thirty days after receiving notice that an
24 incarcerated individual is or may in the next six months become eligible
25 to file a petition under the Second Look Act, an attorney from the office
26 of the public defender shall meet with the incarcerated individual at the
27 facility where such individual is located to discuss the petition process
28 and determine whether the individual desires representation from the
29 public defender.
30 (b) If the incarcerated individual elects to be so represented, the
31 public defender shall draft the petition and provide representation in
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1 all proceedings under the Second Look Act, including any appeal.
2 (c) If the incarcerated individual refuses representation by the
3 public defender, the individual shall sign a waiver form provided by the
4 public defender. The public defender shall file such form with the
5 committee.
6 (4) A petition may be filed by the incarcerated individual, counsel
7 for the incarcerated individual, or the prosecutor. A petition may also
8 be filed by a person acting as next friend for the incarcerated
9 individual, if such individual cannot file the petition themselves and
10 the next friend is acting in the best interests of the individual.
11 Persons eligible to file a petition as a next friend shall include, but
12 are not limited to, the incarcerated individual's next of kin or
13 supporters or a licensed healthcare professional who has treated the
14 individual.
15 (5) A petition shall be in writing and may include affidavits,
16 declarations, letters, prison records, or other written and electronic
17 material. The petition shall include, at a minimum:
18 (a) The name of the petitioner;
19 (b) The name of the incarcerated individual;
20 (c) The case number or numbers;
21 (d) The offense or offenses of conviction;
22 (e) The current sentence or sentences being served for such case
23 number or numbers;
24 (f) The date of any offense and sentence that is the subject of the
25 petition;
26 (g) The name and court of the trial judge and sentencing judge;
27 (h) The specific counts for which resentencing is requested;
28 (i) A factual statement explaining how the incarcerated individual
29 meets the eligibility requirements described in section 4 of this act;
30 and
31 (j) If the petition is filed by the next friend of the incarcerated
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1 individual, a factual statement explaining the petitioner's relationship
2 to the incarcerated individual, why the incarcerated individual cannot
3 file the petition themselves, and how the next friend is acting in the
4 best interests of the incarcerated individual.
5 (6) Within thirty days after receipt of a petition, the committee
6 shall provide a copy of the petition to the prosecutor and the
7 incarcerated individual, including any attached materials.
8 (7) No waiver of the right to petition under the Second Look Act
9 shall be permitted or honored by the committee.
10 Sec. 6. (1) Upon receiving a petition, the committee shall
11 determine whether the facts stated in the petition, if true, would
12 establish eligibility under section 4 of this act. If the committee
13 determines that the facts alleged in the petition, even if true, would
14 not establish eligibility, the committee shall either grant leave to
15 amend the petition or enter an order denying the petition and cause a
16 copy of such order to be provided the incarcerated individual, any
17 counsel for the individual, the prosecutor, and the petitioner, if
18 different than the individual.
19 (2) A petition may be amended with leave of the committee which the
20 committee should grant when justice so requires.
21 (3) If the committee does not deny a petition under subsection (1)
22 of this section, the committee:
23 (a) Shall acquire any file concerning the petitioner from the board;
24 (b) Shall consider the sufficiency of the petition, set a
25 progression schedule, and allow discovery;
26 (c) May direct the parties to expand the record by submitting
27 additional materials relating to the petition; and
28 (d) Shall schedule a hearing as provided in subsection (4) of this
29 section.
30 (4) Unless the committee finds good cause to hold the hearing at a
31 later date, a hearing on a petition scheduled pursuant to subsection (3)
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1 of this section shall be held:
2 (a) Within forty-five days after the petition is filed if:
3 (i) The incarcerated individual has one or more medical conditions
4 leading to major limitations in activities of daily living, including,
5 but not limited to, serious mental illness or an intellectual or
6 developmental disability;
7 (ii) The incarcerated individual has one or more medical conditions
8 that make the individual more likely to contract an illness or disease
9 while incarcerated that could lead to death or cause the individual to
10 develop a medical condition that prevents the performance of one or more
11 activities of daily living without assistance. Such conditions include,
12 but are not limited to, any condition related to a weakened immune
13 system, including human immunodeficiency virus (HIV) or acquired immune
14 deficiency syndrome (AIDS); debilitating health conditions that occur as
15 a result of dementia, Alzheimer's disease, or similar degenerative brain
16 disorders; cardiovascular disease; chronic lung disease or asthma;
17 diabetes; hepatitis C; seizure disorders; the need for life-sustaining
18 care such as feeding tubes or colostomy bags; disabling neurological
19 disorders such as multiple sclerosis (MS) or amyotrophic lateral
20 sclerosis (ALS); or any condition that requires or is expected to require
21 specialty care or recurrent hospitalizations; or
22 (iii) The petition is filed by the prosecutor;
23 (b) Within ninety days after the petition is filed if subdivision
24 (4)(a) of this section does not apply and the incarcerated individual (i)
25 has served over twenty years of the sentence and (ii) is over fifty-five
26 years of age; or
27 (c) In all other cases, within one hundred eighty days after the
28 petition is filed.
29 (5) When the committee sets a hearing on the petition, the committee
30 shall give notice of the time and place of the hearing to the
31 incarcerated individual, any counsel for the individual, the prosecutor,
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1 the department, and the petitioner, if different than the individual.
2 (6) In a hearing under this section, the committee may allow parties
3 to present any evidence that the committee deems relevant. Such evidence
4 may include documents, live testimony, tangible objects, or any other
5 class of evidence or information pertinent to sentencing. The committee
6 has exclusive discretion to determine the relevance of any proposed
7 evidence. At such a hearing, the incarcerated individual shall have the
8 right to testify or to remain silent at the individual's sole discretion.
9 (7) At a hearing under this section, the incarcerated individual
10 shall be present unless the incarcerated individual waives the right to
11 be present. This requirement may be satisfied by the incarcerated
12 individual appearing by video teleconference if such individual consents
13 to such method of appearance.
14 (8) Any hearing under this section shall be recorded or transcribed.
15 Sec. 7. (1) The committee shall consider all evidence relevant to
16 the propriety of a reduction in sentencing, which shall include, but is
17 not limited to:
18 (a) The history and characteristics of the incarcerated individual
19 at the time of the petition for a