October 17, 2019

LINCOLN, Neb. — The American Civil Liberties Union filed a petition for certiorari today, asking the U.S. Supreme Court to hear a notorious death penalty case from Nebraska. The plaintiff, Nikko Jenkins, claims that the state violated his constitutional rights by disregarding the effects of prolonged solitary confinement and by allowing judges — rather than a jury — to make critical factual findings necessary to impose a death sentence. 

Jenkins has bipolar disorder and schizoaffective disorder. He was imprisoned for armed robbery at age 17 and ultimately served nine years in state prison, five of which were spent in solitary confinement. Jenkins exhibited severe mental health problems while in confinement, including self-mutilation and suicide attempts. As his sentence was ending, he warned guards and officials that he was a danger to others and asked to be civilly committed rather than released. Instead, the State of Nebraska released him directly to the community, without any transition or other assistance. Within three weeks, he had killed four people.

“The Nebraska legislature recognized that the state failed Nikko Jenkins and the community by subjecting a mentally ill man to years of solitary confinement and ignoring his pleas not to be released,” said David Cole, legal director of the ACLU. “Yet a panel of judges deliberately turned a blind eye to these key facts when sentencing him to death. If the state executes this man, it will violate constitutional precedent and human decency. We are asking the Supreme Court to redress a blatant violation of both the Sixth and Eighth Amendments, and to make clear that the right to be sentenced by a jury that has considered all relevant mitigating evidence is guaranteed in our Constitution.”

The case, and Nebraska’s inexcusable disregard of Jenkins’ own warnings, received widespread attention in Nebraska. It ultimately caused the state legislature to limit the use of solitary confinement — especially for people with mental illness — but Jenkins was still sentenced to death by a panel of judges who refused to even consider his mitigating circumstances. Jenkins argues that this directly contradicts Supreme Court precedent requiring those making death penalty decisions to consider and give effect to any facts that might lead a decision-maker to choose a life sentence over death.

Jenkins also argues that Nebraska violated his Sixth Amendment jury trial rights by assigning his sentencing to a panel of judges, rather than a jury. The Supreme Court has ruled that juries, not judges, must make all factual findings necessary to the imposition of a death sentence. But Nebraska gives judges the authority to assess mitigating evidence and assess whether the mitigating evidence outweighs “aggravating factors” supporting a death penalty.

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