First Test of Constitutionality : Hearing Set on Sentencing Rules

Federal judges in San Diego will hold an unusual session Wednesday to hear arguments in the nation’s first test of the sweeping new sentencing guidelines imposed by the Federal Sentencing Commission last year.

All seven judges of the U.S. District Court for the Southern District of California will gather in the courtroom of Chief Judge Gordon Thompson Jr., where they will consider attacks on the constitutionality of the guidelines. The guidelines, imposed in November, have been challenged by the San Diego Federal Defenders Office and the Washington-based Public Citizen Litigation Group.

During the 2-hour hearing, lawyers for the Justice Department and the Sentencing Commission will argue their positions on the issue, which have been set out for the first time in papers filed here.

Similar attacks on the constitutionality of the guidelines have been filed in recent days in federal courtrooms across the country as the first of the cases affected by the guidelines come to trial.

“This issue is going to come up before every single federal court in the country,” said Alan Morrison, a lawyer for the Public Citizen Litigation Group who will argue the case for the San Diego federal defenders.

At issue is whether Congress abdicated its responsibility to decide issues of public policy when it created the independent Sentencing Commission in 1984 and allowed it to make the most profound sentencing reforms in the history of the federal courts.

The defense lawyers argue that both the makeup of the commission and the authority it was granted by Congress violate fundamental constitutional principles of separation of powers among the three branches of government.

The commission was set up by Congress as an independent body within the judicial branch, with its seven members appointed by the president, who can also remove them. Three of the seven members must be federal judges.

“They took three from Column A and four from Column B with an egg roll thrown in, and that’s what we end up with,” Morrison said. “A big unconstitutional stew.”

In what has become a three-way argument, lawyers for the Justice Department and the commission have filed separate briefs setting out fundamental disagreements not only with the defense lawyers, but with each other.

The constitutional issue has injected an additional element of confusion and delay into the federal criminal justice system, which is just beginning to grapple with the complex new sentencing formulas set out by the commission. One federal judge said he expects to have to deal with a constitutional challenge in every new criminal case that comes before him.

Sentencing by Formula

The guidelines are widely disliked by federal judges--who lose much of their discretion and must now sentence by formula--and by defense attorneys who find them too harsh. The guidelines all but eliminate probation for most offenders, wipe out the federal parole system, and dramatically increase penalties for white-collar crimes.

“We’re just feeling our way,” said U.S. District Judge Rudi M. Brewster, who organized the San Diego hearing. “I don’t know all the problems and I don’t purport to have all the answers.”

Brewster said he intends to issue a written opinion on the issue “as quickly as I can” to allay confusion that exists among prosecutors, defense attorneys and their clients.

“Whatever we do here, I assume that other district judges will be watching,” Brewster said.

Opinions May Differ

Brewster said the other judges in the district will not be bound by his opinion, “but probably will wait and see what I do.” The other judges, each of whom has a case involving a constitutional challenge, may agree with him or write their own dissenting opinions, he said.

“We are not . . . trying to bind each other,” Brewster said. The judges decided to hear the arguments together to save time, he said.

The defense lawyers argue that the guidelines violate the Constitution in three ways. First, Congress cannot delegate its authority to make substantial decisions on public policy, the lawyers argue.

And even if Congress could delegate its authority regarding sentencing, it would have to delegate it to the executive branch, which has the constitutional power to execute laws, the lawyers assert.

Instead, Congress put the commission in the judicial branch, which was designed to settle matters of controversy in specific cases, not to set broad social policy, the lawyers argue.

“The establishment of broad and binding sentencing guidelines is a very different function than imposing sentences in individual cases,” Morrison, the Public Citizen Litigation Group lawyer, wrote in his brief to the judges.

Finally, the lawyers argue, even if Congress were permitted to delegate the authority to the judicial branch, most of the commission’s members are not judges, but rather appointees subject to the whims of the executive branch.

In their brief filed here, Justice Department lawyers agreed that a sentencing commission set up as part of the judicial branch would indeed violate the separation of powers called for in the Constitution.

However, they argued that Congress “simply mislabeled” the commission when it said in the 1984 law that the panel is “an independent commission in the judicial branch of the United States.” Despite that specific language, the Justice Department argued, the commission is really in the executive branch, which does have the authority to execute laws, and is therefore constitutional.

‘Repeatedly Delegated’

Lawyers for the sentencing commission, however, disagree with the Justice Department and take the position that the structure and the mandate of the commission are “fully consistent with the Constitution.” Over the years, Congress has “repeatedly delegated broad discretion over sentencing-related decisions to federal judges and to the executive branch,” they argue.

“The sentencing function has historically been shared among the three branches and, within wide limits, Congress may allocate discretion . . . as it sees fit,” the commission lawyers contend.

At the heart of the defense argument is the public policy-making function of Congress as the elected representatives of the people, Morrison and the defense lawyers contend.

Congress made clear when it established the commission that its chief intention was to eliminate disparities in sentencing, Morrison said.

‘Very Broad Power’

“Congress could have done what it has done in the past and revised the criminal sentencing laws itself,” he added. “Instead, it chose to delegate the very broad power to make these changes to an independent body.”

Morrison argued that the commission got “sparse directions” from Congress, which gave the commission “unbridled authority” to establish sentencing practices for the federal courts.

“Although Congress need not make every single judgment in connection with sentencing rules, the discretion granted here to the commission is excessive.”

He said Congress also gave the commission “carte blanche” with regard to probation, which the commission drastically curtailed.

The commission also “decided unilaterally” that criminal fines “are appropriate in virtually every case” and established its own view of the appropriate fine for each offense level, Morrison said.

The commission also ranked offenses according to degrees of seriousness and assigned each offense a number that corresponds to a sentence.

For example, the commission’s “Level 13” offenses include civil rights conspiracy, structuring transactions to evade reporting requirements, involving children under 14 in drug trafficking, transporting sexually explicit material involving children under 18, and possessing weapons or narcotics in prison, Morrison said.

Those offenses are one level above perjury, bribing a witness, and obstruction of justice, “which many would consider to be at least as serious, but the commission decided otherwise,” Morrison said.

Such value judgments should be up to legislators, who reflect “the community’s values as to what kinds of sentences are appropriate for what kinds of crimes,” Morrison said. “The question is not whether the rankings are right or wrong. They are surely debatable. The debate should be among our elected legislators, rather than among appointed commissioners.”

“In the end, the system for issuing sentencing guidelines is not one of separated powers, but of blurred responsibility,” Morrison said.

“As a result, if the public dislikes these guidelines, there is no branch that is truly responsible for them, and that result plainly transgresses the doctrine of separation of powers.”

John R. Steer, general counsel for the commission, said another constitutional challenge hearing is set for Friday in San Francisco.

“Our expectation all along is that you will have cases that will receive varying results,” Steer said. He said the challenges were not unexpected and that the issue will ultimately have to be decided by the U.S. Supreme Court.