2 Judges Reject U.S. Sentence Strictures as Unconstitutional

Two federal judges in San Diego have thrown out as unconstitutional the federal government’s sweeping new sentencing guidelines, and Justice Department officials said Friday they are considering strategies for an appeal.

The rulings by U.S. District Judges Rudi M. Brewster and John S. Rhoades, which apply only to cases in their courtrooms, are the first in the nation to deal with the constitutionality of the guidelines drawn up by the U.S. Sentencing Commission and imposed last Nov. 1.

“We just received the opinion. We are reviewing it and studying our options,” said Amy Brown, a spokeswoman for the Justice Department in Washington. The decision on how to proceed is up to the solicitor general, Brown said.

Roger W. Haines, an assistant U.S. attorney in San Diego, said the department is expected to appeal the decisions, but is considering whether to wait until after the defendants in the cases have been sentenced. The San Diego cases involved defendants who are awaiting trial.

22-Page Opinion

In a 22-page opinion, Brewster agreed with lawyers for the San Diego Federal Defenders Office, who argued that the structure of the commission violates separation-of-powers provisions of the Constitution. Rhoades later adopted Brewster’s opinion.

The five other federal judges in the Southern District of California and at least one senior judge are expected to rule on the issue in the coming weeks.

Brewster said the need for a quick decision on the guidelines is urgent because hundreds of new criminal cases are filed around the country each week. “Pleas are being analyzed and negotiated, extensive effort is being expended by the commission, and a myriad of arrangements are being made for putting into place institutions to monitor, oversee, review and administrate the act and its execution,” Brewster said.

“The longer the constitutionality of the guidelines remain uncertain, the deeper the system will be impacted.”

The Sentencing Commission was set up by Congress in 1984 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.

Judges’ Power Limited

The guidelines drawn up by the commission over the past three years all but eliminate probation for most offenders, wipe out the federal parole system, dramatically increase penalties for white-collar crimes, and significantly reduce the sentencing discretion of federal judges.

William W. Wilkins Jr., chairman of the Sentencing Commission and a judge on the 4th Circuit Court of Appeals, said the constitutional challenge “came as no surprise,” and that some 50 attacks on the guidelines have been filed in cases around the nation.

“The real importance is that we finally got a decision and now the appellate process can start so that the U.S. Supreme Court can hear this as quickly as possible,” Wilkins said.

Wilkins said the Supreme Court could decide to hear the case this term, allowing prosecutors to by-pass the Appeals Court, if there are “compelling reasons having national impact.”

“What the guidelines will do is very important and will make significant improvements in our federal judicial system,” Wilkins said. “We are continuing with our work,” he added.

Executive Function

In his opinion, Brewster said the commission performed a function that belonged in the executive, rather than judicial, branch and that Congress improperly required that three judges sit on the commission.

“The functions of the commission--interpreting, monitoring and enforcing the mandate of the statute as laid out by Congress--appear to fall within the construction of what constitutes an executive function,” Brewster said. The commission’s duties and powers “are distinctly non-judicial in nature,” he said.

Because the commission had “primarily executive” duties and powers, its placement in the judicial branch violates the Constitution, Brewster said.

Further, by requiring that three federal judges sit on the commission, “Congress has threatened the very essence of the judicial branch--its actual and apparent impartiality and independence,” Brewster said. “The judge-commissioners must now wear two hats--one executive and one judicial,” Brewster said. “They sit with members of the executive branch and are subject to removal by the president. Yet they must also maintain their complete independence and impartiality in their role as . . . judges.”

The commission, however, establishes “a permanent working relationship between the judiciary and the executive on matters affecting criminal law,” Brewster said.

“There are serious questions as to whether a judge-commissioner can maintain objectivity in carrying out the judge’s courtroom duties,” Brewster said.

Brewster added that there are certain to be challenges to the guidelines in the future that will require rulings by other federal judges “who may be reluctant to set aside the work of their judicial colleagues.” He said “the perception of non-impartiality” by litigants and the public is “sufficient to constitute a violation of the principle of separation of powers.”

Brewster rejected an argument by Justice Department lawyers who concede that the commission belongs in the executive branch but assert that the language of the law placing it in the judicial branch is irrelevant.