State v. Boche
294 Neb. 912
| Neb. | 2016Background
- Defendant Jason J. Boche was charged with first‑degree sexual assault for acts committed when he was 11–16 years old; he pleaded no contest as an adult and was sentenced to 1 year’s imprisonment.
- After a bench finding that the offense was aggravated (victim under 13), the court ordered lifetime sex‑offender registration and lifetime community supervision under Nebraska statutes.
- Boche challenged those lifetime requirements as cruel and unusual punishment under the Eighth Amendment and raised an ex post facto argument for community supervision.
- The State argued procedural defects: no Neb. Ct. R. App. P. § 2‑109(E) constitutional‑notice filing and that some constitutional issues were waived by plea or not preserved below.
- The Nebraska Supreme Court addressed (a) whether procedural rules barred review, (b) whether lifetime registration is punitive, (c) whether lifetime community supervision is punishment and, if so, whether it is cruel and unusual as applied to a juvenile offender.
Issues
| Issue | Plaintiff's Argument (Boche) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a § 2‑109(E) constitutional‑notice was required | §2‑109(E) not required for as‑applied challenge; Zawaideh suggested distinction | Rule requires strict compliance for any constitutional challenge | Court clarifies strict compliance is required generally but, given confusion from prior language, nonetheless considered as‑applied challenge on the merits |
| Whether plea/no contest waived Boche’s as‑applied Eighth Amendment challenge | His no contest plea did not waive an as‑applied Eighth Amendment challenge to registration/supervision statutes | Plea waives all defenses to the charge, including constitutional claims | Court held the plea did not waive the as‑applied Eighth Amendment challenge to the SORA and supervision statutes |
| Whether lifetime registration constitutes punishment (Eighth Amendment) when applied to a juvenile | Lifetime registration applied to juveniles is punitive and thus cruel and unusual given juvenile recidivism data | Registration is a civil, regulatory scheme aimed at public protection and not punishment | Court followed State v. Worm: registration is civil not punishment; therefore not cruel and unusual as applied to Boche |
| Whether lifetime community supervision is cruel and unusual when applied to a juvenile (Eighth Amendment) | Lifetime supervision is functionally punitive, severe, and inconsistent with Graham/Miller principles for juveniles | Although supervision is punishment (akin to parole), it is less severe than life without parole; Nebraska’s scheme is individualized and reviewable, serving penological goals | Court held supervision is punishment but, applying Graham/Miller framework, lifetime community supervision (as structured in Neb.) is not cruel and unusual when applied to Boche; ex post facto claim was not preserved and not addressed |
Key Cases Cited
- Graham v. Florida, 560 U.S. 48 (categorical Eighth Amendment analysis for juveniles; national consensus and independent judgment framework)
- Smith v. Doe, 538 U.S. 84 (registration statutes analyzed under Mendoza‑Martinez factors; registries may be civil)
- Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (factors for determining whether a statutory scheme is punitive)
- Roper v. Simmons, 543 U.S. 551 (juvenile diminished culpability principle)
- State v. Worm, 268 Neb. 74 (Nebraska holding that lifetime sex‑offender registration is civil, not punitive)
- State v. Payan, 277 Neb. 663 (Nebraska holding that lifetime community supervision is punishment akin to parole)