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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Nebraska: Prosecutors will seek death penalty in cellmate killing

Prosecutors say they will seek the death penalty for Patrick Schroeder, the inmate facing murder charges in the strangling death of his cellmate last month.

After a brief hearing Wednesday, Schroeder was whisked away and headed back to the Tecumseh State Correctional Institution north of town.

In the hallway, Mike Guinan of the Nebraska Attorney General's office said they, along with Johnson County Attorney Rick Smith, are pondering whether to file aggravators necessary to make it a capital case and would decide by Schroeder's arraignment in June.

"We are looking at the aggravators, yes," he said.

On April 15 just after 7:30 p.m., Terry L. Berry, 22, was found unconscious on the floor with a towel around his neck in the cell he shared with Schroeder, according to court records. He was taken to a Lincoln hospital, where he died 5 days later.

Investigators said Berry had injuries that were consistent with being strangled, a court document says.

An autopsy confirmed the cause of death to be strangulation, and the manner of death to be homicide.

It's unclear why Berry, who was serving a short sentence on a forgery charge and up for parole a month later, shared a cell with Schroeder, who was serving a life sentence for killing a 75-year-old Pawnee City farmer in 2006.

The cell in the prison's special management unit -- used to separate inmates who break rules or pose a risk to staff or other inmates or for an inmate's own protection -- was built to house a single inmate.

"Almost immediately it did raise some concerns and raised concerns with a lot of people looking at corrections," Doug Koebernick, the inspector general for Corrections, said Wednesday.

He's investigating why Berry was placed at Tecumseh and what he was doing in restrictive housing, in addition to what happened the night he was killed.

"I'll be trying to get to the bottom of it," Koebernick said.

The issue seems likely to be raised should the case go to trial.

"We are asking the same questions," said Schroeder's attorney, Sarah Newell of the Nebraska Commission on Public Advocacy.

It also could be a question for the grand jury that will be called to review Berry's death.

Johnson County Attorney Rick Smith said he hasn't yet requested a grand jury in Berry's killing, or in the killings of 2 inmates at the Tecumseh prison March 2.

He said the investigations are all still pending, as is 1 looking into the killing of 2 inmates during a Mother's Day riot in 2015.

Last month, Omaha Sen. Bob Krist called for a reopening of the special legislative investigative committee to look into the continued problems at the prisons.

"We need to make sure that there's accountability for the (inmate) lives that have been lost in the last 2 1/2 years," he said within days of Berry's killing.

On the floor of the Legislature then, he asked who was responsible for the pairings of inmates and, on Wednesday, said he still questions how the 2 ended up in 1 cell.

Krist said he's since learned that Berry was a "pretty obnoxious person." Some wouldn't even sit at dinner with him because he constantly chattered and was an antagonist, Krist said.

"So why would you put a convicted murderer in the same cell?" he asked. "My basic point is that I don't even think you should double bunk in administrative segregation cells. They're too small. You're asking for problems."

After Berry's killing, Corrections Director Scott Frakes said double bunking in the segregation unit at Tecumseh was very limited and defended its use.

He said "using the correct tools and in the right setting and with the right population, it's safe and it's OK to house people in a restrictive housing setting with 2 people in a cell. Just like it is in general population."

On Wednesday, prison spokeswoman Dawn-Renee Smith said state law prevents her from speaking directly about the circumstances in this case, but said generally that numerous factors are considered when making cell assignments, including things like criminal history, institutional behavior and gang affiliation.

As for double bunking in restrictive housing, she said, it's done at prisons around the country.

"It is a more efficient use of space and it can lessen the feeling of isolation when another person is in the cell," Smith said.

In June 2015, she said, the prison made a change to allow all restrictive housing cells to be double bunked. There currently are about 100 cells that are double bunked in Tecumseh's restrictive housing unit. At the end of last week, only 10 had 2 inmates in them.

The practice also is done at the Nebraska State Penitentiary, Omaha Correctional Center and Lincoln Correctional Center.

Source: Lincoln Journal Star, May 4, 2017

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