dissenting:
Wilford L. “Pete” Cherry sold cocaine out of his home and as a result pled guilty to delivery of drugs on February 5, 1996, in the District Court of McCurtain County, Oklahoma. District Judge Willard L. Driesel sentenced Cherry to twelve years with five years suspended. Cherry was transferred to the custody of the Oklahoma Department of Corrections [D.O.C.] on February 9, 1996. Thirty-two days later, the D.O.C. released Cherry from custody and sent him home pursuant to 57 O.S. § 510.9, a statute providing for electronic monitoring of inmates. Cherry was also placed under the supervision of a D.O.C. probation and parole officer.
Judge Driesel, upon hearing of Cherry’s release from prison by the DOC, issued an order requiring the Director of the D.O.C. to immediately take Cherry into D.O.C. custody and imprison him or appear and show cause why he should not be held in contempt. The Director of D.O.C. filed this action requesting this Court to prohibit Judge Driesel from enforcing his order. The case before us presents many procedural problems: who is the proper party, was he served, does venue lie in McCurtain County. These and several other interesting, complex procedural problems plague this case. The importance of this matter, however, convinces me that we should overlook the formal procedural problems and decide the substantive issue of this case on the merits.
The substantive issue in this ease may be stated as follows: Which branch of govern*1009ment in the State of Oklahoma has the constitutional authority to determine the length of time a person shall be incarcerated1 upon conviction of a crime?2
The Oklahoma Constitution divides the powers of government into three separate departments or branches, the Legislative, Executive, and Judicial, and further provides that no branch shall exercise powers belonging to another.3 This separation of powers, with its inherent system of cheeks and balances, was drawn from a similar division of powers in the United States Constitution.
Entering a judgment of conviction and sentence in a criminal case is a quintessential judicial power. And, if a court has the authority to enter a valid judgment it must have the authority to enforce that judgment. If the judiciary does not have the power to enforce its judgments then it can hardly be said to be a co-equal branch of government. Indeed, if it cannot enforce its judgments, the judiciary becomes a hollow branch.
Clearly, the Legislative branch has exclusive authority to pass laws determining what shall constitute crimes in Oklahoma and establishing penalties for such crimes. The Judicial branch has exclusive authority to try individuals charged with crimes and enter judgment and sentences upon trial of such charges. The Executive branch has exclusive power to cany out the judgment and sentence of the court in a criminal case or, alternatively, the constitutional authority to grant reprieves, commutations, paroles and pardons as specifically provided by the Oklahoma Constitution.4
Imposing judgment and sentence in a criminal ease is the business of the courts. Neither the Legislature nor the Executive branch has the authority to change a judicially imposed sentence, except by reprieve, commutation, parole or pardon as specifically provided by our Constitution. The Executive branch has clear constitutional authority to grant pardons and paroles pursuant to Article VI, Section 10 of the Oklahoma Constitution, but cannot go beyond that authority. The Legislature may of course change the length or type of punishment to be imposed for any crime, but may not alter the length of a sentence after sentence is imposed in a specific case. As the Legislature has no authority to alter the length of Cherry’s validly imposed sentence, it cannot delegate that authority to the Executive branch. Thus the D.O.C. had no lawful authority to order Cherry’s release.
The Respondent trial court sentenced Cherry to twelve years with five years suspended. The D.O.C. released Cherry from prison after only 32 days of custody and assigned him to the Electronic Monitoring *1010Program pursuant to a law which allows the D.O.C. to release inmates from incarceration if certain conditions are met, despite the terms of the sentence imposed by the trial court. The majority’s discussion focuses on cases in which courts have attempted to impose on the Executive branch specific conditions for confining prisoners. That is not the situation here. The trial court merely imposed a sentence of a term of years, to be served through the D.O.C. This is well within the trial court’s powers — in fact, the trial court is the only entity which could sentence Cherry. The only “condition” of Cherry’s sentence was that he be confined in D.O.C. custody. The trial court attempted to ensure that this sentence was carried out. This action does not encroach on any power vested in the Executive branch. Judge Driesel neither imposed specific requirements on the manner in which Cherry’s sentence was to be served, nor attempted to prevent the D.O.C. from carrying out a reprieve, commutation, parole or pardon. A trial court surely has the power to enforce a validly imposed court order.
Clearly, the early release laws enacted by the legislature were good faith responses to the overcrowding problems in our state prisons. Similarly, the attempts to implement these laws by the D.O.C. and the Governor have been in good faith. There is absolutely no evidence that either of the other branches of government is attempting to seize or tread upon the powers and functions of the judiciary. However, notwithstanding the good faith of the Legislature and the Executive branches, the net result of laws establishing pre-paróle, electronic monitoring, and other such programs is to effectively negate sentences recommended by juries and imposed by court order. Such statutes also violate the Executive’s exclusive constitutional powers to grant reprieves, commutations, paroles and pardons. Any such law is, in my judgment, unconstitutional and a violation of the separation of powers as provided by Article TV, Section 1 of the Oklahoma Constitution. I would therefore, accept jurisdiction of this matter, declare 57 O.S.Supp.1996, § 510.9, invalid and remand this matter to the District Court for further proceedings.
STRUBHAR, Vice Presiding Judge,dissenting:
Because the majority 'seeks to upset the balance of power between the three branches of government and relinquish the judiciary’s authority to sentence convicted individuals to imprisonment, I must dissent. After Wilford L. “Pete” Cherry entered a plea of guilty for selling cocaine out of his home, the District Court sentenced Cherry to twelve years imprisonment with five years suspended. Thirty-two days after Cherry arrived at the Lexington Assessment and Reception Center to serve his sentence, he was returned to his home under the Department of Corrections’ Electronic Monitoring Program.
When Judge Dreisel learned of Cherry’s release from prison, he ordered the Director of Corrections to furnish proof that Cherry was not currently assigned to the Electronic Monitoring Program or to immediately comply with the judgment and sentence of the court by returning Cherry to a prison facility or to show cause why the Director should not be held in indirect contempt of court for failing to comply with the sentencing order.
The majority concludes that the District Court lacked jurisdiction over the Director of the Department of Corrections because he was not a named party in the criminal proceeding. Is it to be contended that, where the law in precise terms directs District Courts to sentence convicted individuals to imprisonment, the law is incapable of securing obedience to its mandate?1 Further, is it to be contended that the heads or directors of departments are not amenable to the law of this State? Because the indirect contempt statute is not limited to named parties to an order but rather applies to “any person,” I would find that the District Court had jurisdiction. 21 O.S.1991, § 565.
The majority also concludes that the District Court’s efforts to hold the Director of the Department of Corrections in indirect contempt in order to challenge his official *1011acts violates the Oklahoma constitutional doctrine of separation of powers. It is my belief that it is the duty of the judicial department to say what the law is. Those who apply the rule of law to particular cases must, of necessity, expound and interpret the rule. When a particular district court enters an order sentencing a convicted individual to imprisonment pursuant to a penal statute, the court has entered a valid enforceable order requiring confinement in a prison facility. Neither the Legislature nor the Executive branch has the authority to modify a judicially imposed sentence unless the court’s order confers that authority by committing the convicted individual to imprisonment subject to alternative confinement programs instituted by the Department.
. Several fictions have been developed to avoid facing this issue. Thus, it is argued that an inmate released by D.O.C. on electronic monitoring or on "pre-parole” is in "constructive custody.” The plain fact is, however, that if an inmate is not in prison, he is not in custody. I do not dispute the fact that an inmate who is subject to electronic monitoring, or who is subject to supervision by a probation officer, has significant restrictions upon his liberty. Notwithstanding such restrictions, however, such an inmate is not in custody.
. Confusion surrounding this issue has led to serious problems in Oklahoma. At present, no one knows what any sentence means. The case before us is a perfect example. A judge sentenced Cherry to twelve years with five years suspended. A visitor from Mars who understands English would undoubtedly, conclude that Cherry would be in prison for seven years. Instead, he was released after 32 days and directed to go back to the very home from which he had been convicted of selling drugs.
Neither the Judge, prosecutor, defendant, defense lawyer, jury, victim, legislature or Chief Executive of the State have any idea how long a person convicted and sentenced to a specific term of years will serve in Oklahoma. The only thing certain about a sentence in Oklahoma is its uncertainty. And, we cannot permit this to continue. The negative effects of such uncertainty on the criminal justice system are immeasurable. The public has very little confidence in the system as can be seen by jurors who routinely impose sentences measured in thousands of years. They know that a year does not mean a year. Jurors also continually send notes to the trial judges during deliberations asking if a sentence of life without parole really means what it says. We refuse to even allow trial judges to answer such questions. Thus, there is no doubt in my mind we have people on death row because jurors have no confidence that a life without parole sentence means life without parole.
. Okla. Const, art. IV, § 1.
. Okla. Const, art. VI, § 10.
. It cannot be disputed that the District Court had the power to enter a valid order sentencing Cherry to imprisonment. 63 O.S.1991, § 2-401(B)(2).