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Nebraska High Court Refuses to Enact Sentencing Guidelines

August 31, 2007

By Leslie Reed, Omaha World-Herald, Neb.

Aug. 31–LINCOLN — The Nebraska Supreme Court said today it would not enact sentencing guidelines designed to ease prison crowding and keep the state from having to build a new prison.

In a unanimous decision written by Judge William Connolly, the high court said the proposed guidelines would violate the separation of powers doctrine.

It is the Legislature’s responsibility, the court said, to define crimes and to set punishments.

“That power is exclusively reserved to the Legislature,” Connolly wrote.

The decision is not a fatal blow to efforts to create sentencing alternatives to reduce prison overcrowding, said Kermit Brashear, the former state lawmaker who initiated the effort.

“Obviously, it’s not what we would have desired,” Brashear said. “But it’s not the whole of the effort.”

The guidelines, which would have been voluntary, would have applied only to drug offenders, who now make up about 25 percent of the state prison population.

The guidelines call for analyzing the severity of the offense and offenders’ criminal history to determine whether they should be sent to prison, probation or to drug treatmeant or other newly created services offered in the community.

The high court, however, concluded that the guidelines were not truly voluntary, because judges would be required to give reasons if they chose not to use them.

State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the decision will be a subject for the Legislature to consider in 2008.

“We can fix this,” he said. “The decision is not hard to understand, and I think the Legislature will have to dig into it this session.”

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Copyright (c) 2007, Omaha World-Herald, Neb.

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