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.