Nebraska Proposed Sentencing Guidelines
One of the Community Corrections Council's statutory duties was to develop sentencing guidelines for felony drug offenders and submit the proposed guidelines to the Nebraska Supreme Court N.R.S §47-630. The objective of sentencing guidelines is to reduce dependence on incarceration as a sentencing option for non-violent drug offenders.
In April 2007, the Community Corrections Council submitted proposed guidelines for felony drug offenders to the Supreme Court for consideration. The Supreme Court ultimately declined to adopt the proposed guidelines as a court rule, indicating in its decision that sentencing guidelines are a legislative function and that the separation of powers doctrine prohibits the legislature from delegating that function to the Judicial Branch. Below you will find the sentencing guideline matrix proposed to the court along with a description of the guidelines process.
|Criminal History Category||A||B||C||D||
|Severity Level||2+ Person Felonies||Either 3+ Nonperson Felonies OR 1 Person 1 Nonperson Felony||1 Person Felony OR 2 Nonperson Felonies||Either 1 Nonperson Felony OR Significant Misd Record||No Significant Misd Record|
- Ranges are shown in terms of months
- The "Traditional Probation" number indicates the presumptive maximum sentence duration
- "Intermediate" means sanctions such as Intensive Supervision Program (ISP), Reporting Center, Specialized Substance Abuse Supervision (SSAS), Work Ethic Camp, long term residential treatment with appropriate supervision strategies, probation with a jail term imposed, and work release
- The "Imprisonment" number indicates the range for incarceration when a term of incarceration is imposed
Crime Severity Levels
The vertical axis or left column of the Nebraska Sentencing Guidelines for Felony Drug Offense grid represents the crime severity levels. The levels correspond to the felony classifications the Legislature has enacted into law beginning with a Class IB felony at the top of the column to a Class IV felony at the bottom of the column. Excluded from the grid are Class I and Class IA felonies as no drug offenses are classified as such.
Criminal History Rules
The criminal history scale is represented in an abbreviated form on the horizontal axis of the sentencing guidelines grid for drug crimes. The relative severity of each Criminal History Category decreases from left to right, with Criminal History Category A being the most serious classification and Criminal History Category E being the least serious classification.
Category A is used to categorize offenders having two or more prior felony convictions designated as person crimes. Category E is used to categorize offenders having either no criminal record or a single conviction for a misdemeanor. The criminal history categories classify an offender's criminal history in a quantitative as well as a qualitative manner. The categories between A and E reflect cumulative criminal history with and emphasis on whether prior convictions were for person crimes or non-person crimes. Generally, person crimes are weighted more heavily than nonperson crimes. Within limits prior convictions for person crimes will result in harsher sentence for the current crime of conviction. When utilizing Sentencing Guidelines, courts shall consider community correctional programs and facilities in sentencing designated offenders, with the goal of reducing dependence on incarceration as a sentencing option for nonviolent offenders. (Nebr. Rev. Stat. § 47-630)
Sentencing Guideline Process
The proposed guidelines submitted to the court are voluntary in nature, but require a rationale to be indicated if a departure is made. Once a conviction is finalized, the court is to determine the crime severity level by the most serious crime of conviction and the intersection of the severity level and criminal history category determines placement of the case on the sentencing grid.
Each grid block contains recommended sentence type and range. Mandatory minimum sentences are not affected by the guidelines, however, and the determination of concurrent vs. consecutive sentences in multiple count cases is also left to the discretion of the judge. When a sentence is given outside the guideline range, a reason for departure will be given by the judge in the sentencing order and a departure report will be completed at the time of sentencing to capture the requisite data needed to identify and analyze the impact of the guidelines. No additional avenues for appeal are created by the guidelines and departure from the guidelines is not an appealable decision.
- Severity Levels determined by most serious crime of conviction.
- Criminal History Categories determined by person or non-person convictions ("person" crimes are those classified as "Offenses Against the Person" in the Nebraska Revised Statutes, "non-person" crimes are all crimes not classified as "Offenses Against the Person").
- Intersection of Severity Level and Criminal History Category determines placement of case on grid.
- Each grid block contains recommended sentence type and range.
- Guidelines are silent on concurrent vs. consecutive sentences in multiple count cases-imposition of a concurrent of consecutive sentence will be at the discretion of the sentencing judge.
- Mandatory minimum sentences are not affected by the guidelines.
- In relation to the grid, sentences are not subject to review or appeal (other than that provided under current law). This system is also considered "voluntary" in terms of guideline structure.
- Departure from the guidelines cannot be appealed.
- If a sentence is given outside the guideline range, a reason for departure will be given-- a departure report will be completed at the time of sentencing to capture requisite data needed to identify and analyze the impact of the guidelines.
- Any risk assessment completed as part of the presentence investigation to be used as a tool in the sentencing process, not as a formal part of the grid.
- The presentence investigation will be used to determine the appropriate criminal history designation based on the horizontal axis grid.
- An assumption is that the good time law will not change. If a change is made to the good time law, the Community Corrections Council will analyze the effect the change would have on the guidelines, if any, and make further recommendations to the Supreme Court.
- It may be inappropriate to use the guidelines for sentencing on probation revocations. This will be determined by the sentencing judge.