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Abstract

PART A ... I. Introduction ... II. Review of the Literature ... III. Law and Practice in the Nebraska Death Penalty System ... A. Judicial Sentencing ... B. Death Eligibility, Fact Finding, and the Weighing of Aggravation and Mitigation ... C. Comparative Proportionality Review ... 1. Proportionality Review in Penalty Trials ... a. Pre-1978 ... b. Post-1978 ... 2. Proportionality Review in the Nebraska Supreme Court ... a. Pre-1978 ... b. Post-1978 ... D. Prosecutorial Charging Practices ... E. The Implications of Ring v. Arizona for Capital Sentencing in Nebraska ... F. Conclusion

PART B ... IV. Methodology, Research Design, and Measures ... A . Introduction ... B. Measures of Defendant Culpability ... 1. The Number of Statutory Aggravating Circumstances Found or Present in the Cases ... 2. Number of Statutory Aggravating and Mitigating Circumstances Found or Present in the Cases ... 3. The Salient Factors Measure ... 4. Logistic Regression-Based Measures ... C. A Measure of Geographic Disparity ... D. A Note on Unadjusted and Adjusted Disparities ... E. Convergent Validity and Triangulation of Empirical Findings ... F. Omitted Variables ... V. The Disposition of Homicide Cases: 1973–1999 ... A. Capital and Non-Capital Cases ... B. The Disposition of Capital Cases ... VI. Evidence of the Impact of Defendant Culpability on Prosecutorial and Judicial Decisionmaking ... A. The Impact of Individual Statutory Aggravating and Mitigating Circumstances ... B. The Number of Statutory Aggravating and Mitigating Circumstances in the Cases ... 1. The Number of Aggravating Circumstances ... 2. The Number of Statutory Aggravating and Mitigating Circumstances ... C. Salient Factors of the Cases ... D. Regression-Based Measures and Scales

PART C ... VII. Evidence of Disparate Treatment in Charging and Sentencing Outcomes Based on the Race of the Defendant and Victim ... A. Disparate Treatment and Disparate Impact Legal Theories ... B. Evidence of Disparate Treatment Based on the Race of the Defendant ... 1. Unadjusted Statewide Minority-Defendant Disparities in Charging and Sentencing Outcomes ... 2. Statewide Minority-Defendant Disparities in Charging and Sentencing Decisions Controlling for Offender Culpability ... 3. Race-of-Defendant Disparities in the Exercise of Prosecutorial Discretion After Adjustment for the Place of Prosecution (in Major Urban Counties v. the Counties of Greater Nebraska) ... C. Evidence of Disparate Treatment Based on the Race of the Victim ... D. Evidence of Minority-Defendant/White-Victim Disparate Treatment ... VIII. Evidence of the Disparate Impact of State Law and Policy on Minority Defendants ... A. Evidence of a Statewide Disparate Impact on Minority Defendants in the Rates that Death-Eligible Cases Advance to Penalty Trial ... B. Evidence of an Adverse Impact on Minority Defendants in the Execution of Death-Sentenced Offenders

PART D ... IX. Evidence of Disparate Treatment in Charging and Sentencing Outcomes Based on the Socioeconomic Status (SES) of the Defendant and Victim ... A. Defendant SES ... B. Victim SES ... 1. Statewide Disparities ... 2. Disparities in the Major Urban Counties and Greater Nebraska ... X. Evidence of Geographic Disparities in Charging and Sentencing Outcomes ... A. Unadjusted and Adjusted Geographic Disparities ... B. Geographic Disparities Over Time ... C. Alternative Explanations for Geographic Disparities in the Rates that Cases Advance to a Penalty Trial ... 1. Disparities in Financial Resources ... 2. The Experience of Prosecutors in Capital Litigation ... 3. Judicial Sentencing Practices as a Proxy for Judicial Attitudes ... 4. The Imminence of Prosecutorial Elections ... 5. Differences in the Frequency of Problems of Proof that "Compel" Plea Bargains

PART E ... XI. Evidence of Consistency and Selectivity in Charging and Sentencing Outcomes ... A . Introduction ... 1. Consistency ... 2. Selectivity ... B. Evidence of Inconsistency and Comparative Excessiveness ... 1. The Nebraska Data ... a. Quantitative Analysis ... b. Qualitative Analysis ... c. A Note on Proportionality Review in the Nebraska Supreme Court ... 2. Testing the Proffitt Hypothesis with a Comparative Assessment ... a. Death-Sentenced Cases in Which 70% or More of the Defendant's Near Neighbors Receive a Death Sentence ... b. Death-Sentenced Cases in Which Fewer than 50% of the Defendant's Near Neighbors Receive a Death Sentence ... c. Death-Sentenced Cases in Which the Death-Sentencing Rate Among the Defendant's Near Neighbors is Less than the Overall Average Rate ... C. Evidence of Selectivity in the Imposition of Death Sentences ... 1. Quantitative Analysis ... 2. Qualitative Analysis

PART F ... XII. Summary of Principal Findings, Conclusions, and Recommendations ... A. Principal Findings and Conclusions ... 1. Race-of-Defendant and Race-of-Victim Disparate Treatment ... 2. Adverse Disparate Impact on Minority Defendants ... 3. Minority-Defendant Adverse Impact among Death Row Prisoners Executed ... 4. Disparate Treatment Based on the Socioeconomic Status (SES) of the Defendant and Victim ... 5. A Trend of Declining Death-Sentencing Rates ... 6. Geographic Disparities in the Exercise of Prosecutorial Discretion ... 7. Consistency and Selectivity of Charging and Sentencing Outcomes ... 8. Legislative Ambiguity Concerning Prosecutorial Charging and Judicial Sentencing Discretion ... B. Policy Recommendations ... 1. Legislative Amendments to Satisfy the Requirements of Ring v. Arizona ... 2. Legislation to Clarify the Scope of Prosecutorial and Judicial Discretion Under Section 29-2521, Which Defines the Procedure for a First-Degree Murder Sentencing Hearing ... 3. Legislation to Limit the Power of the Court to Impose a Death Sentence to Cases in Which It Believes That the Facts of the Case "Clearly Justify" the Imposition of a Death Sentence and That as a "Matter of Law" the Statutory Aggravating Circumstances "Substantially [or Clearly] Outweigh" the Statutory Mitigating Circumstances ... 4. Legislation to Limit the Power of Prosecutors to Seek a Death Sentence to Cases in Which the Prosecutor Believes That the Facts of the Case "Justify" or "Clearly Justify" the Imposition of a Death Sentence ... 5. Legislation to Limit Death Sentencing to Cases in Which the Defendant Had a Substantial Level of Mental Culpability (Mens Rea) ... 6. Legislation to Limit Death Sentencing to Cases in Which the Defendant's Level of Criminal Culpability is Comparable to That Historically Found in Cases with Two or More Statutory Aggravating Circumstances ... 7. Legislation (a) to Require the Development of Statewide Standards for the Exercise of Prosecutorial Discretion in Capital Cases, and (b) to Require Prosecutorial Consultation with a Prosecutorial Advisory Committee as a Condition for the Court's Convening of a Penalty Trial ... 8. Legislative Adoption of a "Fairness in Death Sentencing Act" ... 9. Legislation to Require the Nebraska Law Enforcement and Criminal Justice Commission to Maintain a Database of All Death-Eligible Cases for Use by Courts, the State, Defense Counsel, and Scholars in the Field

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