In re Nebraska Community Corrections

738 N.W.2d 850

274 Neb. 225

In re PETITION OF NEBRASKA COMMUNITY CORRECTIONS COUNCIL TO ADOPT VOLUNTARY SENTENCING GUIDELINES FOR FELONY DRUG OFFENSES.

No. S-36-070001.

Supreme Court of Nebraska.

August 31, 2007.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The Legislature has mandated by statute that we promulgate by court rule sentencing guidelines for certain offenses.¹ 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.² 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.

OVERVIEW OF THE CREATION UNDER L.B. 46 OF COMMUNITY CORRECTIONS COUNCIL AND SENTENCING GUIDELINES

In 2001, the Governor convened the Community Corrections Working Group. The group worked within the Nebraska Commission on Law Enforcement and Criminal Justice. The group's goal was to address Nebraska's rising prison costs by (1) developing less expensive community-based correctional options for nonviolent offenders and (2) reducing the State's reliance on incarceration for these offenders.³ In passing 2003 Neb. Laws L.B. 46, the Legislature adopted many of the group's proposals.⁴

At the committee hearing, the introducer of L.B. 46 stated that the goal was "to limit the use of incarceration" and "to prevent Nebraska's correctional system from bankrupting the state of Nebraska."⁵ He explained that the budget for the Department of Correctional Services had increased 100 percent from fiscal year 1996-97 to fiscal year 2002-03. He projected that even with completion of a new correctional facility in 2001, the prison population would reach 153 percent of design capacity by 2005.⁶

In passing L.B. 46, the Legislature enhanced treatment programs for substance abuse offenders and required participants in both probation and non-probation-based programs to pay fees toward the costs of services.⁷ Also, as part of L.B. 46, the Legislature enacted the Community Corrections Act.⁸ The act establishes community-based correctional alternatives for some offenders. The Legislature specifically intended to

[p]rovide for the development and establishment of community-based facilities and programs in Nebraska for adult offenders and encourage the use of such facilities and programs by sentencing courts and the Board of Parole as alternatives to incarceration or reincarceration, in order to reduce prison overcrowding and enhance offender supervision in the community.⁹

To carry out the program, the act created the Community Corrections Council (hereinafter the Council).¹⁰ The Council's duties include (1) developing a statewide plan for community correctional facilities and programs,¹¹ (2) developing eligibility standards for probationers and parolees in community facilities and programs,¹² and (3) recommending sentencing guidelines for adoption by this court.¹³

In addition to mandating that the Council develop sentencing guidelines, the Legislature also mandated that we adopt sentencing guidelines: "In order to facilitate the purposes of the Community Corrections Act, the Supreme Court shall by court rule adopt guidelines for sentencing of persons convicted of certain crimes."¹⁴

Also, § 47-630(4) provides that "[t]he Council shall develop and periodically review the guidelines and, when appropriate, recommend amendments to the guidelines." Obviously, this means the Council would periodically recommend that we adopt amendments to the guidelines.

In February 2007, the Council filed a petition with this court requesting that we adopt and implement by court rule its "voluntary sentencing guidelines for felony drug offenses." The Council also asked that we develop, in coordination with the Council, protocols and curriculum for training judges, probation officers, county attorneys, and defense counsel.

COMPOSITION OF SENTENCING GUIDELINES

As its title shows, the Council's proposed sentencing guidelines apply only to the sentencing of felony drug offenders. Woven into the guidelines' fabric is a matrix of sentencing ranges, in months, which ranges fall within the statutory minimum and maximum sentences for an offense. A sentencing judge would select a sentencing range by finding the intersection of coordinate points on horizontal and vertical axes. Points on the horizontal axis of the matrix represent criminal history categories, and points on the vertical axis represent crime severity levels. In addition, the matrix is color coded into three recommended types of sentences.

From this mosaic, the Council recommends that a judge sentence a defendant to a prison term if the defendant's plotted sentence falls within the matrix's yellow, or upper, section. It recommends that a judge sentence a defendant to probation if the plotted sentence range falls within the matrix's light blue, or lower, section. Finally, defendants whose plotted sentence ranges fall within the dark blue, or intermediate, section are eligible for community-based correction alternatives. A judge may divert these defendants from prison.

HEARING ON THE COUNCIL'S PETITION TO ADOPT ITS SENTENCING GUIDELINES

In April 2007, we heard argument on the Council's petition. The chairman, Kermit Brashear, spoke for the Council. He stated that in June 2006, the prison population had reached the emergency level-140 percent of capacity¹⁵—and was currently around 139 percent of capacity. He further stated that if action were not taken, another prison would have to be built. Brashear also reported that in a 6-year period, the budget for the Department of Correctional Services had doubled from $60 million to $120 million, and that it would double again at a time when the State was facing declining revenues.

He stated that the Council had targeted nonviolent felony drug offenders in its initial guidelines because these offenders make up 27 percent of the maximum-security prison population. The Council believed many offenders could be diverted into alternative correction programs.

Finally, Brashear stated that treatment within prisons is the least effective but most costly way of dealing with drug offenders and reducing their recidivism. He reported that incarceration costs $30,000 per year for each offender, while substance abuse supervision programs cost about $3,000 per year and are more effective in reducing recidivism.

OVERVIEW OF THE SEPARATION OF POWERS CLAUSE

Nebraska's separation of powers clause¹⁶ prohibits the three governmental branches from exercising the duties and prerogatives of another branch.¹⁷ It also prohibits a branch from improperly delegating its own duties and prerogatives— except as the constitution directs or permits.¹⁸ Our constitution, unlike the federal Constitution and those of several other states, contains an express separation of powers clause. So we have been less willing to find overlapping responsibilities among the three branches of government.¹⁹

Deciding whether the Nebraska Constitution has committed a matter to another governmental branch, or whether the branch has exceeded its authority, is a delicate exercise in constitutional interpretation.²⁰ And it is our responsibility, as the ultimate interpreter of our constitution, to make that decision.²¹

As we know, the line between what is a legislative function and what is a judicial one has not been drawn with precision; we make that decision on a case-by-case basis.²² In defining that line, we look at the function's purpose—not merely its statutory origin—to decide whether a governmental function is legislative or judicial.²³

POWERS OF THE LEGISLATIVE BRANCH

As imprecise as the line between the branches may sometimes be, logic and case law dictate that it is the Legislature's function through the enactment of statutes to declare the law and public policy and to define crimes and punishments.²⁴ In defining crimes and punishments, it sets the broad policy goals of this state's criminal justice system, including whether, for a particular type of crime, the corrective goal should be retribution, deterrence, or rehabilitation.²⁵

In setting out the Legislature's powers to define crimes and punishments, we have stated:

[T]he Legislature has the authority to fix the penalty range which can be imposed for the crimes it has defined. The Legislature determines the nature of the penalty imposed, and so long as that determination is consistent with the Constitution, it will not be disturbed by the courts on review. In this regard, in State v. Tucker,²⁶ we observed: "`The legislature is clothed with the power of defining crimes and misdemeanors and fixing their punishment; and its discretion in this respect, exercised within constitutional limits, is not subject to review by the courts.'"²⁷

We have [also] stated: "The range of the penalty for any offense is a matter for legislative determination. The court exercises its discretion as to the penalty to be applied under any particular state of facts within the range provided by the law."²⁸ Thus, once the Legislature has defined the crime and the corresponding punishment for a violation of the crime, the responsibility of the judicial branch is to apply those punishments according to the nature and range established by the Legislature.²⁹

In short, the Legislature defines crimes and establishes the range of penalties.

POWERS OF THE JUDICIAL BRANCH

This court's primary duty is the proper and efficient administration...