Rules for Sentencing, New Panel's Power Questioned by Judges

Times Staff Writer

In the first appellate court review of a sweeping overhaul in federal sentencing regulations, judges of the U.S. 9th Circuit Court of Appeals on Friday questioned whether a commission appointed by the President should have the power to dictate sentences for federal crimes.

"It goes to the heart of who has the power to sentence people and make those kind of decisions," Judge Melvin Brunetti said of the new guidelines, which sharply limit the discretion of trial judges in sentencing federal defendants.

The guidelines set a narrow range of sentences and automatically stiffen penalties in some areas, including white-collar crime.

Friday's hearing focused on arguments that the guidelines, drafted by a judicial commission with Congress' authorization, violate constitutional separation-of-powers requirements and threaten the ability of the judiciary to remain free of political influence.

Matter of Interpretation

Defense lawyers have accused the Reagan Administration of interpreting its power to appoint and remove members of the U.S. Sentencing Commission as authorizing the President to control the panel's deliberations.

"We disagree violently with the Justice Department when (it says) that . . . Congress intended that this commission . . . be submissive to the (President)," said Paul M. Bator, who is defending the guidelines on behalf of the commission.

The sentencing guidelines, which took effect Nov. 1, have been overturned by a variety of district court judges, including a majority of the judges in Los Angeles, in a complex legal debate over what branch of government is responsible for fixing punishment for federal crimes.

Although the debate has been focused in general constitutional terms, at its center are questions about how much power the President and the judiciary can wield over the criminal sentencing process--a power that defense lawyers argue should rightly be left to Congress.

Both judges and lawyers have questioned whether the Reagan Administration's assertion that the commission is part of the executive branch could allow the President to control the sentencing process by, say, appointing only commissioners who favor the death penalty.

Alan B. Morrison of the Public Citizen Litigation Group, arguing on behalf of defense lawyers, contended that it is also unconstitutional to allow judges--who fill three of the commission's seven seats--to make broad policy decisions in the area of sentencing.

"When you have judges becoming involved in the kind of policy choices like saying white-collar criminals should go to jail longer--in what they admit are frankly policy changes--that kind of charge is inappropriate for judges," Morrison said.

"It sends a message out to the public that what we had established and believed to be an independent judiciary is no longer quite the same."

San Diego Cases

Friday's hearing centered on two San Diego cases in which defendants have been sentenced under the guidelines for illegal border crossings.

In one case, the government is appealing a federal judge's ruling that the guidelines violate the separation-of-powers provision of the Constitution. In the other, a defendant is challenging the elimination of "good time" credits for prisoners under the guidelines, which also wipe out federal parole.

The three-judge panel gave no indication of when it would rule, but Justice Department lawyers have already said they will seek early review by the U.S. Supreme Court in another case, which has not yet been decided on appeal.

Judge Alex Kozinski, who was joined on the panel by Judges Charles E. Wiggins and Melvin Brunetti, raised several questions about whether judges might not have the same authority to issue regulations as, say, the Environmental Protection Agency.

"It's a new business for us, but why not take it up?" he inquired.

One Way Out

The Justice Department has said the possible separation-of-powers problem can be alleviated by simply designating the commission as an arm of the executive branch, attorney Douglas Letter argued for the department.

Long-established legal precedent has permitted Congress to delegate a variety of regulatory powers to other branches of government, Letter said.

"Do you think Congress has equal authority to delegate so broadly in this case?" Kozinski asked. When Letter nodded, he said:

"That doesn't bother you, to give that yes answer? This is a far broader delegation of core authority than we have ever seen in the history of our country."

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