Court Fights Ahead Over New Sentencing Rules : Novel Attempt at Fairness Is Attacked as a Violation of Separation of Powers

It was a neat solution to a persistent political problem. Perhaps too neat.

Conservatives had long complained that some judges were too soft on criminals. Liberals had charged that other judges meted out harsh sentences to street criminals and gentle treatment for white-collar thieves.

To remedy those problems, a 1984 compromise between Sens. Strom Thurmond (R-S.C.) and Edward M. Kennedy (D-Mass.) created an “independent commission within the judicial branch” to draw up a sweeping set of rules to establish precise sentences for specific crimes.

But this nifty effort to engineer fairness has run smack into an unforeseen roadblock.

Rules Seen as Too Rigid

Defense lawyers in about 50 federal district courts have challenged the new rules as unconstitutional because the seven-member commission that wrote them included three judges as well as four private-sector experts. The defense lawyers have an unstated but less lofty motive as well: The rigid new guidelines rob them of their room to make plea bargains for their clients.

Thirteen judges have ruled on the challenges so far with seven upholding the guidelines and six striking them down. Unless Congress acts, only the Supreme Court will be able to untangle the knot, and action at that level is probably about a year away.

“We are heading for chaos,” said attorney Alan Morrison of the Public Citizen Litigation Group, a Ralph Nader-affiliated organization.

“It will be very unsettled to say the least,” agreed Justice Department spokesman Amy Brown.

“We could be facing thousands of resentencing procedures” when the Supreme Court finally decides the issue, said John R. Steer, general counsel for the U.S. Sentencing Commission.

Handful Affected

So far the new guidelines, which apply to crimes committed after last Nov. 1, actually have played a role in the sentences of only a handful of convicted criminals. Two federal district judges in San Diego, however, already have thrown out the new guidelines and sentenced two people--one convicted for being a drug courier and the other of entering the United States illegally--under the old rules.

They will be the first of many. Altogether, 40,000 people are convicted of federal crimes in a typical year, and now they are to be sentenced under rules--whether the old ones or the new ones--that may be invalid.

Morrison himself is in large part responsible for the uncertainty by leading the legal challenges to the new rules.

Morrison says that Congress would have been on firm constitutional ground if it had enacted the sentencing guidelines into law. But the constitutional doctrine of separation of powers, Morrison says, does not permit judges both to prepare the guidelines and to implement them.

The legislation that established the Sentencing Commission gave the President the power to appoint its seven members but required him to choose three of them from among the ranks of the federal judiciary. President Reagan complied, making Appeals Judge William W. Wilkins Jr. of South Carolina its chairman.

Under the guidelines prepared by the commission, federal judges are no longer free to give a bank robber anywhere from one year to 20.

Use of Point System

Instead, judges must determine the severity of the crime based on a point system. Bank robbery, for example, is worth 18 points. Carrying a weapon adds three points and causing “serious bodily injury” means four points more.

After adding up the points, the judge, like an anxious taxpayer, turns to a table with points listed down the left side. The judge skips across a column or two if the convict has committed previous crimes, and there, lo and behold, he finds the sentence, with only a narrow range of discretion.

Reagan Administration officials say that they are generally happy with the tough new guidelines. In a brief presented in a variety of district courts, they dismissed the constitutional challenge--that sitting judges have no business preparing sentencing guidelines--as flawed.

The judges on the Sentencing Commission, the Justice Department argued in the brief, served not “in their capacity as federal judges, but in their private capacities as individuals with special expertise in the area of sentencing.”

The defense of the Sentencing Commission comes at an awkward time for the Administration. At the same time it is arguing that the commission’s makeup does not violate the separation of powers doctrine, it is using the same doctrine to try to have federal “independent counsels” declared unconstitutional.

Named by Judicial Panel

Independent counsels, formerly known as special prosecutors, are appointed by a special panel of three federal judges to investigate charges of illegality by high-ranking executive branch officials.

Independent counsels recently have embarrassed the Administration by securing convictions of former Reagan White House aides Michael K. Deaver and Lyn Nofziger and the indictments of former White House aides Oliver L. North and John M. Poindexter in the Iran-Contra scandal.

The Administration insists that the law establishing independent counsels should be struck down as unconstitutional because it gives the judiciary a “core executive function”--the appointment of officials to prosecute federal crimes. A case challenging the constitutionality of the independent counsel act has reached the Supreme Court, which is expected to hear arguments next month.

Many legal experts are unimpressed by the Administration’s distinction between the sentencing guidelines and the independent counsel act.

“I think it really comes down to whose ox is being gored,” said Georgetown University Law School Prof. Michael Seidman. The Justice Department, he said, favors the tough sentencing rules but does not like the threat of independent counsels.

“They use the rhetoric about ‘separation of powers’ when it suits their purpose,” Seidman said.

All Favor Speedy Appeal

In the struggle over the sentencing guidelines, all sides say that they favor a speedy appeal to the Supreme Court.

The Sentencing Commission has urged the Justice Department to petition the Supreme Court to pluck the case from the lower courts as soon as possible.

“That authority is reserved for extraordinary situations and this is clearly an extraordinary situation,” Steer said. “Otherwise, we are going to have virtually every federal court in the country called upon to decide the same question.”

However, since the high court already has filled up its case calendar for the term ending in July, the earliest the justices could hear the sentencing case would be in October. Typically, a decision is rendered three or four months after the case is argued.

The Sentencing Commission is also considering asking Congress to enact the rules into law.

Sees ‘Real Downside’

“If we could get Congress to approve the guidelines now, it would remove the uncertainty,” said Judge Wilkins, the commission’s chairman and a protege of Sen. Thurmond. But he added that this would have “a real downside” because congressional critics might try to veto or amend portions of the rules.

If neither Congress nor the Supreme Court moves quickly to resolve the issue, the U.S. 9th Circuit Court of Appeals in California probably will be the first federal appeals court to act. Eight district judges in San Diego already have ruled--four one way and four the other.

“It is chaotic in this district,” said Judy Clarke, director of the public defender’s office in San Diego. Convicted criminals, she said, will receive tougher or more lenient sentences depending on which judge handles their cases--exactly the situation the new rules were intended to prevent.

“One way or another,” Clarke said, “no matter how this comes out, we are going to have a lot of people who will be going back through the sentencing procedure.”