Nebraska State Constitution Article I-9
Bail; fines; imprisonment; cruel and unusual punishment.
All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
- Neb. Const. art. I, sec. 9 (1875);
- Amended 1978, Laws 1978, LB 553, sec. 1.
- Note: In Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981), the court held that the portion of this section denying bail to persons charged with certain sexual offenses is an unconstitutional violation of the Eighth Amendment to the Constitution of the United States. But the order in Hunt v. Roth was vacated and remanded in Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982) for mootness.
2. Excessive bail
3. Death penalty
4. Fines and punishments
5. Sentences of juveniles
Pursuant to this provision, not all offenses are bailable offenses. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
A constitutional amendment adding first degree sexual assault to offenses for which bail may be denied is constitutional and is not violative of the fourteenth Amendment due process clause of the U.S. Constitution. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979).
Denial of bail on murder charge where proof is evident or presumption great is no basis for claim guilty plea involuntary. State v. Hamilton, 187 Neb. 359, 190 N.W.2d 862 (1971).
One charged with first degree murder has no absolute right to bail. State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171 (1968).
Throughout state history bail has been provided for and favored. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
A fugitive from justice who is in custody by virtue of a rendition warrant issued by the Governor in an extradition proceeding is not entitled to bail pending appeal. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946).
That all persons shall be "bailable by sufficient sureties" is a rule which should apply to one arrested in a "children born out of wedlock" proceeding, as well as to one charged with a felony or misdemeanor. State v. Noxon, 96 Neb. 843, 148 N.W. 903 (1914).
The use of term "bail" without limitation or qualification would seem to imply a bail as understood at common law before adoption of Constitution, and the court may admit to bail after sentence and pending appeal. Ford v. State, 42 Neb. 418, 60 N.W. 960 (1894).
2. Excessive bail
The issue of excessiveness of pretrial bail is not reviewable after a conviction and sentence. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
Habitual criminal statute does not contravene provision prohibiting excessive bail. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).
Excessive bail is not whether the amount of bail required is high but rather is the bail demanded per se unreasonable and disproportionate to crime charged in indictment. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).
Denying bail to persons charged with certain sexual offenses violates the "excessive bail" clause of the eighth amendment of the U.S. Constitution as incorporated in the fourteenth amendment. Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981).
3. Death penalty
The death penalty is cruel and unusual punishment when imposed on a prisoner whose mental illness makes him or her unable to reach a rational understanding of the reason for his or her execution. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
Electrocution as an execution method violates the constitutional prohibition against cruel and unusual punishment because it will inflict intolerable pain unnecessary to cause death in enough executions to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
In a method of execution challenge, "wanton" means that the method itself is inherently cruel. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The death penalty, when properly imposed by a state, does not violate either the 8th or the 14th Amendments to the U.S. Constitution or the state Constitution's proscription against inflicting cruel and unusual punishment. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The relevant legal standards in deciding whether electrocution is cruel and unusual punishment are whether the State's chosen method of execution (1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner's body. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Whether a method of execution violates the constitutional prohibition against cruel and unusual punishment presents a question of law. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Whether a method of inflicting the death penalty inherently imposes a significant risk of causing pain in an execution is a question of fact. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Whether the Legislature intended to cause pain in selecting a punishment is irrelevant to a constitutional challenge that a statutorily imposed method of punishment violates the prohibition against cruel and unusual punishment. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The death penalty may deter offenders, is not invariably disproportionate to the severity of the crime of murder, and is not per se cruel and unusual punishment. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
4. Fines and punishments
The prohibition against cruel and unusual punishment in the federal and state Constitutions is a restraint upon the exercise of legislative power. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Section 29-2203 does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
This constitutional provision does not abridge the Legislature's power to select such punishment as it deems most effective in the suppression of crime, provided the punishment is not grossly disproportionate to the crime. State v. Ruzicka, 218 Neb. 594, 357 N.W.2d 457 (1984).
Statute providing six months jail sentence plus two-year revocation of motor vehicle operator's license did not violate this section. State v. Tucker, 183 Neb. 577, 162 N.W.2d 774 (1968).
Provision for sterilization of feeble-minded persons as prerequisite to parole or release from state institution is not "cruel and unusual punishment" and is not repugnant to this section of the Constitution. In re Clayton, 120 Neb. 680, 234 N.W. 630 (1931).
Sentence under statute providing for "bread and water" diet for prisoner is not repugnant to this section. State ex rel. Carson v. Smith, 114 Neb. 661, 209 N.W. 330 (1926); State ex rel. Nelson v. Smith, 114 Neb. 653, 209 N.W. 328 (1926).
The return of the property or of the value thereof in embezzlement or larceny cases, in addition to the penal sentence, should not be considered as any part of the punishment as excessive or unusual. Everson v. State, 66 Neb. 154, 92 N.W. 137 (1902).
In determining whether a criminal fine is so excessive as to violate this provision prohibiting excessive fines, the test is whether the penalty is grossly disproportional to the gravity of the defendant's offense. State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).
In order to determine whether a fine challenged under this provision is grossly disproportional, the claimant must first make a prima facie showing of gross disproportionality, and if the claimant does so, the court then considers whether the disproportionality reaches such a level of excessiveness that the punishment is more criminal than the crime. State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).
5. Sentences of juveniles
A juvenile offender's sentence did not constitute cruel and unusual punishment where it allowed for release 17 years before his life expectancy. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017).
It is unconstitutional for a state to impose a sentence of life imprisonment without parole on a juvenile convicted of a nonhomicide offense. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017).
Nebraska's sentence of life imprisonment is effectively life imprisonment without parole under the rationale of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), because it provides no meaningful opportunity to obtain release. State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).
The mere existence of a remote possibility of parole does not keep Nebraska's sentencing scheme from falling within the dictates of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).
A sentence under a law not yet operative is null and void. State ex rel. Whitacre v. Smith, 114 Neb. 659, 209 N.W. 332 (1926).