Polikov v. Neth6/24/2005
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
At issue is the constitutionality of Neb. Rev. Stat. §§ 29-3601 through 29-3609 (Cum. Supp. 2004), which purport to authorize and regulate pretrial diversion programs. The appellees, Sarpy County Safety Program, Inc., and L. Kenneth Polikov, the county attorney for Sarpy County, argue that the statutory scheme violates the constitutional principle of separation of powers by infringing upon a county attorney's prosecutorial discretion. The district court for Lancaster County agreed and permanently enjoined the enforcement of §§ 29-3601 through 29-3609 and the regulations implemented under the authority of these sections. We conclude that the power to design a formal pretrial diversion program is a legislative function and that thus, §§ 29-3601 through 29-3609 do not violate the separation of powers clause.
BACKGROUND
Broadly understood, pretrial diversion could include nearly every disposition of a criminal matter that occurs without a trial. See Samuel J. Brakel, Diversion from the Criminal Process: Informal Discretion, Motivation, and Formalization, 48 Denv. L.J. 211 (1971). This case, however, involves a particular subset of pretrial diversion: situations when a prosecutor agrees to forgo prosecution in exchange for the accused's promise to perform a condition or set of conditions meant to rehabilitate the accused. As long as the accused completes the condition, charges will not be brought. When we refer to pretrial diversion, this is what we mean.
Individual prosecutors have always practiced pretrial diversion on an informal basis. See 4 Wayne R. LaFave et al., Criminal Procedure § 13.6(a) (2d ed. 1999). Generally, this had been done in a "haphazard way." Id. at 84. They used no eligibility guidelines to decide whether the accused should be allowed to avoid prosecution. Further, the conditions that the accused had to meet were set on a case-by-case basis and usually involved such things as paying restitution to the victim or joining the military. See, id.; Brakel, supra.
In the late 1960's, however, jurisdictions throughout the nation began to formalize pretrial diversion. These formal programs were different from informal diversion practices in two key respects. First, the formal programs usually had set eligibility guidelines, as well as standardized admission practices. Second, instead of setting the conditions that the accused would have to meet to avoid prosecution on a case-by-case basis, the accused agreed to complete a pre-existing program of supervised rehabilitation. These programs involved elements like classwork, job training, and substance abuse treatment. See, generally, ABA Comm. on Corr. Facilities and Servs., Legal Issues and Characteristics of Pretrial Intervention Programs (1974); Note, Criminal Practice--Pretrial Intervention Programs--An Innovative Reform of the Criminal Justice System, 28 Rutgers L. Rev. 1203 (1975); Note, Pretrial Diversion from the Criminal Process, 83 Yale L.J. 827 (1974).
In Nebraska, as in many other jurisdictions, the county attorney began formalizing pretrial diversion programs in individual counties. Some county attorneys, however, expressed concern over whether they had the authority to implement formal diversion programs. To address these concerns, the Legislature, in 1979, made its initial foray into the world of formalized pretrial diversion. See, Statement of Purpose and Judiciary Committee Hearing, L.B. 573, 86th Leg., 1st Sess. (March 6, 1979).
This initial attempt to regulate formal pretrial diversion programs was not extensive. The statutory scheme assured county attorneys that they
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