Authorization Required: Veterans Treatment Courts, the Need for Democratic Legitimacy, and the Separation of Powers Doctrine

41 Pages Posted: 26 May 2013 Last revised: 11 Feb 2014

See all articles by Sohil Shah

Sohil Shah

Emory University School of Law

Date Written: April 9, 2013

Abstract

What limits do judges have when creating specialty courts such as Veterans Treatment Courts (“VTCs”)? Many states have virtually no limits. I argue that states should enact legislation authorizing the creation of VTCs to maintain democratic legitimacy and ensure that the judiciary respects the separation of powers doctrine.

VTCs represent an innovative and courageous approach to treat and rehabilitate veterans who have committed certain crimes by acknowledging the underlying mental health effects that can result after combat experiences and trigger criminal behavior. In many states, however, judges create these courts without legislative authorization. Without legislative authorization, judges have almost unlimited power to establish these courts, as well as to determine their structures, rules, and procedures. Allowing for unlimited judicial power diminishes democratic legitimacy and often creates separation of powers issues.

First, legislation lends VTCs democratic legitimacy. Legislation allows a democratically elected legislature to set forth basic requirements and procedures for the courts, thereby ensuring that judges do not have unlimited power in establishing them. Legislation also helps usher in the systematic changes that these courts achieve as specialized problem-solving courts that aim to treat veterans who have committed certain crimes. Second, legislation ensures separation of powers between the legislative and judicial branches of our government. Legislation acknowledges the historic tradition of separation of powers by setting forth a change in the criminal justice system pursuant to public advocacy. Separation of powers also requires distinct law-making power in the legislative branch. Legislation, therefore, prevents judges from usurping that law-making power by setting up these courts independently and without oversight.

Keywords: Veterans Treatment Courts, Legislation, Separation of Powers

Suggested Citation

Shah, Sohil, Authorization Required: Veterans Treatment Courts, the Need for Democratic Legitimacy, and the Separation of Powers Doctrine (April 9, 2013). Southern California Interdisciplinary Law Journal, Vol. 23, No. 1, 2014, Available at SSRN: https://ssrn.com/abstract=2268258

Sohil Shah (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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