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September 1, 2007

Nebraska high court rejects effort to pass sentencing buck

As detailed in this AP story and this effective news analysis, on Nebraska Supreme Court yesterday declared that the state legislature had violated the state constitution "when they enacted a plan this year intended to have the high court adopt sentencing guidelines aimed mostly at drug offenders."  The ruling came in In Re Petition of Nebraska Community Corrections Council, 274 Neb. 225 (Aug. 31, 2007) (available here).  Here is how the opinion begins:

The Legislature has mandated by statute that we promulgate by court rule sentencing guidelines for certain offenses. Under the guidelines, courts must consider community correctional programs and facilities in sentencing offenders.  In February 2007, the legislatively created Community Corrections Council petitioned this court to adopt its proposed guidelines.  We invited the public to comment on the proposed guidelines.  Several members of the judiciary raised concerns related to separation of powers.

We conducted a hearing in April.  We agree that the Legislature’s mandate violates the Nebraska Constitution’s separation of powers clause. We deny the Community Corrections Council’s petition, because we conclude that the Legislature cannot delegate to the judicial branch its constitutional power to enact the laws of this state.

September 1, 2007 at 06:42 AM | Permalink


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Thats rich, more passive aggressive nonsense form the Nebraska Supreme Court. They do just fine leaving us in suspense on everyday sentencing such as a cold blooded murderer who has gone through his umpteenth appeal and now we find out its probably unconstitutional to electrocute him. And the Nigerian gang-banger who shot a college coed at a party "by mistake" who will get his walking papers in 15 years. But guidelines? H*** NO!

Posted by: Dale Gribble | Sep 1, 2007 2:53:00 PM

Doug, I think the Nebraska court's response to the
actions of the legislature is a refreshing example
of the basic principles of separation of powers, which usually receive little respect. For example, in California the judiciary can decide a
legislative function of whether a crime is a
misdemeanor or a felony, ("wobblers") In North Carolina, maybe still maybe not New York , and most other states Habitual Felon laws have , i
improperly in my opinion, delegated power to prosecutors to decide at what level a particular crime will be punished. In North Carolina, the legislature, in an effort to micromanage the work of the judiciary in the political hot potato arena of driving while impaired cases, has mandated that NC judges report their conviction rate in only DWI cases to the legislature.

Kudos to Nebraska Supreme Court.

bruce cunningham

Posted by: bruce cunningham | Sep 1, 2007 4:01:40 PM

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