\u3ci\u3eState v. Gales\u3c/i\u3e, 265 Neb. 598, 658 N.W.2d 604 (2003): The First Test of Nebraska\u27s New System of Capital Punishment—The Battle Is Over, But What About the War?

The use of capital punishment has been a major source of controversy in the modern world. This Note examines U.S. Supreme Court doctrine in an effort to determine a navigable course through the changing tides of the Court’s death penalty jurisprudence. Part II provides an overview of the Nebraska Unicameral’s legislative response to the Ring v. Arizona edicts. It also examines the arguments presented in State v. Gales and the foundation of these arguments in the cases leading up to Ring. Part III analyzes these arguments with a view toward predicting both future progressions and the ultimate implications of such progressions on the Nebraska sentencing scheme. Specifically, section III.A demonstrates the Court’s recent doctrinal shift that emphasizes substance over form in its treatment of capital sentencing factors. Section III.B discusses the questions explicitly left unanswered in Ring and the Court’s recognition that this shift could have greater implications on capital sentencing jurisprudence rooted in either the Sixth or Eighth Amendment. Section III.C examines the Sixth and Eighth Amendment arguments for expanding the jury’s role in capital sentencing by analyzing those factors the Court has deemed relevant. The subdivisions of section III.C consider the jury’s retributive function as the conscience of the community, the historic role of the jury in capital cases, and modern empirical research comparing judicial sentencing with jury sentencing. Examination of these various sources suggests, and it is the thesis of this Note, that the Court is likely to further expand its definition of the jury’s role in capital sentencing under either Sixth or Eighth Amendment principles, which would result in the invalidation of the newly adopted Nebraska sentencing scheme