In the four years prior to his execution, Harold Lamont Otey filed two constitutional challenges that raised questions about the Nebraska clemency process. The majority rejected Otey's due process challenge in both the initial habeas corpus appeal and the subsequent civil rights claim. The dissent argued that Otey's claim should be upheld as a violation of substantive due process. This Note explores the dissent's opinion that the Attorney General's conduct, in acting as both decisionmaker and prosecutor at the Board of Pardons hearing, was outside the acceptable realm of government activity and was so unfair as to constitute a substantive due process violation. First, this Note briefly summarizes the history of the pardons process. This historical overview will demonstrate that the power to grant clemency is historically an executive power that is discretionary in nature. Second, this Note reviews a line of cases in which prisoners raised due process claims including, most recently, cases addressing the clemency process. The Note will distinguish between this line of largely procedural due process cases and Otey's substantive due process claim. Third, this Note contrasts the two distinct views of substantive due process voiced by the majority and the dissent. Finally, this Note analyzes the Attorney General's role in the Pardons Board hearing and measure it according to standards of fairness and acceptable government behavior as set forth in case law, and according to the historical ethical standards for attorneys and judges espoused by the American Bar Association. This Note concludes that the vesting of the Pardons Board decisionmaking power in the Attorney General, as one of three executive officers, creates an opportunity for abuse of power. The opportunity for abuse was seized upon in Otey's Board of Pardons hearing, when the Attorney General transformed the informal hearing into an adversarial proceeding and assumed the role of prosecutor as well as arbiter. Such exploitation of a governmental position—when the price at stake is a human life—shocks society's notions of fundamental fairness and thus violates substantive due process.
Sheree Strom Carson,
Walking the Thin Line in Otey v. Stenberg, 34 F.3d 635 (8th Cir. 1994): Did the Attorney General's Dual Role of Arbiter and Prosecutor Shock the Conscience?,
73 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol73/iss2/9