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Tyler Morning Telegraph: Mandatory Sentences ‘Upend’ Separation of Powers

| June 15, 2016

An editorial in the Tyler Morning Telegraph draws heavily from a new report released by Derek Cohen of the Texas Public Policy Foundation stating that sentencing enhancements—statutory provi­sions that raise the minimum threshold of a criminal sentence based on a certain charac­teristic of the offense or offender—not only have inconclusive ability to deter criminal behavior, but can also open the door to “harsh, counterproductive penalties”:

“The law can also result in non-violent felons being locked up for inordinate amounts of time – at taxpayer expense – in cases in which a judge’s hands are tied. Cohen points out some of the felonies that can trigger that third-strike penalty: practicing acupuncture without a license, violating bingo restrictions and failing to register an aircraft. As third-degree felonies, these would be enough to lock a person up for no less than 25 years.”

The editorial’s disapproval of such policies stems from its larger case against mandatory sentencing in general, stating that they “undermine local control and separation of powers”:

“The separation of powers is one of the fundamental concepts of our style of government—and why it works so well. It’s also a concept that’s been under attack in recent years, and not just from overreaching executives and legislating judges.


The legislative branch has done its share of power-grabbing, as well.


Take mandatory sentence enhancements. When lawmakers set minimums and enhancements, they’re usurping the power of the judicial branch. And that’s a problem.”

These sentencing enhancements, along with mandatory sentences in general, contribute to what the editorial states is the “real problem,” namely the shift away from an independent judiciary, in which lawmakers are “trying to do the jobs of the judges.”

While some critics claim that determinate sentencing was simply a response to judges not getting sentencing right in the 1960’s and ‘70’s, leading to a national crime wave, the editorial is dubious, saying instead that that is an argument for removing bad judges, not upending “the separation of powers.”


MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

His work for the Foundation has focused primarily on criminal justice reform topics, particularly civil forfeiture, prison reform and justice reinvestment, mens rea reform, occupational licensing, and various law enforcement and privacy issues. He’s also written about federal corporate subsidies, school choice, and gun rights.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. At EWU, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

His writing has appeared in National Review, The Hill, Townhall, Washington Examiner, Dallas Morning News, El Paso Times, Trib Talk, RedState, Ricochet, and Breitbart Texas.