Prosecution’s sentencing veto unconstitutional, Nevada Supreme Court says | NevadaAppeal.com

Prosecution’s sentencing veto unconstitutional, Nevada Supreme Court says

Nevada Supreme Court.

The Nevada Supreme Court says the statute giving the prosecution the power to prevent a district judge from assigning a potentially violent offender to veteran's court is unconstitutional.

Five members of the high court agreed with District judge Connie Steinheimer the statute gives the prosecution what amounts to a veto over the judge's sentencing decision.

But one said the ruling wasn't necessary because the statute still gives the judge discretion and the seventh justice argued the majority decision actually bars assigning any veteran with a history of force or violence to the program.

The case involved Matthew Glenn Hearn who pleaded guilty to battery by a prisoner, a Category B felony. A specialty court officer said Hearn is eligible for a veterans court program because he's a veteran with a mental illness, substance abuse or post-traumatic stress disorder related to his military service.

But the prosecution refused to allow Hearn's assignment to veterans court so his lawyers asked the court to find that statute unconstitutional.

Steinheimer agreed and the Washoe County DA's office appealed.

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Both sides agreed the issue needs to be clarified.

The veterans court program allows eligible defendants to have their criminal cases suspended and puts them on probation. Successful completion of probation then allows the charges to be dismissed.

Five members of the court ruled the law violates the separation of powers because sentencing decisions are within the power of the judiciary and "cannot be conditioned upon the prosecution's approval."

Chief Justice Michael Douglas agreed with the decision the prosecutor doesn't have veto power over the judge, but argued they didn't need to rule the statute unconstitutional to reach that conclusion. He said the statute says the court "may not" assign the veteran to veterans court without the prosecution's stipulation but it doesn't say the court "shall not" do so. Therefore, he wrote, the judge still retains discretion the statute as written requires the judge to seek input from the prosecutor but doesn't prevent the court from disregarding that input.

Justice Kris Pickering, however, said the majority's edit of the statute effectively prohibits any offender with a history of force or violence from going to veterans court.

She said striking the phrase, "unless the prosecuting attorney stipulates" leaves the statute saying that judges, "may not assign the defendant to the program" if he or she has any history of force or violence.

"As a result, no veteran charged with or who has a history of violent crime can participate in veterans court going forward, even presumably in a case where both the district court and the prosecutor believe assignment is appropriate," she wrote.

Pickering said the proper way to handle the issue is for the Legislature to determine what makes an offender eligible or ineligible for the veterans court program.