Court Voids Tough Rules on Sentencing

A tough new package of federal sentencing guidelines was struck down Tuesday by a federal appeals court, which held that a judicial commission should not have been assigned the politically sensitive job of fixing punishment for crimes.

In the first appellate court decision on the controversial guidelines, the U.S. 9th Circuit Court of Appeals ruled in San Francisco that placing the commission in the judicial branch and asking judges to serve on it “breaches the wall of separation between the judiciary and the two political branches.”

Requiring judges to make decisions that are more properly in the province of Congress or the executive branch, the court said in a 2-to-1 opinion, “threatens to squander the precious aura of judicial impartiality, to the ultimate detriment of the judiciary and the society it serves.”

The decision was expected to help resolve some of the chaos that has erupted in federal courtrooms since the sentencing guidelines took effect Nov. 1. Already, 140 U.S. district judges throughout the country have declared the guidelines unconstitutional, but 105 judges have upheld them, leaving widespread uncertainty in many districts about how defendants should be sentenced.

“In San Diego, they’ve been sentencing all over the board . . . It’s an absolute zoo,” said Judy Clarke, a lawyer for the Federal Public Defenders of San Diego Inc., which challenged the guidelines.

Clarke said the ruling will require district courts throughout the West to return to sentencing defendants under the laws as they existed before the guidelines were adopted, unless the Justice Department seeks to stay the ruling pending a final resolution from the U.S. Supreme Court.

Sentencing Delayed

In Los Angeles, district court judges in an en banc ruling earlier this year also declared the guidelines unconstitutional, but some major sentencings have been delayed pending the 9th Circuit’s resolution of the case.

Before the guidelines, judges were free to exercise broad discretion in sentencing, answering only to certain minimum and maximum penalties set out in federal statutes. But the guidelines established a narrow range of allowable penalties for every federal crime. Judges could deviate from the range only by finding that factors exist which the commission did not take into consideration when drafting the guidelines.

The guidelines also increase the penalties for certain crimes, particularly white-collar crime, and reduce the instances in which straight probation can be imposed. The federal parole system and “good time” credits for prisoners are virtually abolished.

The 9th Circuit opinion held that many of those ancillary issues, such as the “good time” credits, are not severable from the guidelines themselves, holding that asking the courts to uphold some provisions of the new Sentencing Act and not others would be to introduce “piecemeal reforms” in the judicial system.

Reagan Appointee

The opinion was written by Judge Alex Kozinski, a Reagan appointee who has become one of the court’s leading new conservatives, and reflects a conservative, non-activist view of the role of judges in framing public policy.

The primary issue is whether Congress violated the Constitution’s separation of powers requirements by placing the U.S. Sentencing Commission in the judicial branch and requiring three judges to serve on it.

The Justice Department and the commission have argued that judges have historically been responsible for deciding punishment for crime. In any case, the government argues, the commission could practically be considered an arm of the executive branch, since it is the President who has the power to remove its members.

But Judge Kozinski, joined by Judge Melvin Brunetti, held that such practical considerations should not determine the power of the branches of government.

“Convenience and efficiency are not the primary objectives--or hallmarks--of democratic government,” the court said. “Rather, convenience is the hallmark of consolidated power. Because it is easily abused, such power poses a greater threat to liberty, here the liberty of tens of thousands of individuals who will face substantially longer sentences under the guidelines.”

Political Function

Moreover, the court held that the commission’s functions, being “quintessentially political in nature,” are not the proper province of the judges who sit on it, whether or not they are actually acting as judges when deliberating as a commission.

“Because judges must act--and be perceived to act--with complete impartiality in carrying out their responsibilities, the Constitution creates a wall of separation between the judiciary and the other branches; that wall is only seldom breached,” the court said.

The President’s power to remove commissioners creates the appearance that a judge has received “a plum” if appointed to the commission, and can likewise make it appear that a judge is being punished if he makes a decision as a commissioner contrary to the wishes of the President, the court said.

“While we are confident that no federal judge would be swayed by such considerations, the tens of thousands of persons who litigate against the government in civil and criminal cases may legitimately be apprehensive about the fact that the President is able to dispense plums among the federal judges who decide their cases,” the court said.

Basis of Dissent

Judge Charles Wiggins dissented, rejecting arguments that the judicial branch’s impartiality is imperiled by judges’ service on the commission, particularly since the commission is not performing the kind of “case or controversy” function set out by the Constitution for the judicial branch.

“The difficulty faced by Congress in addressing the real problems of unacceptable sentencing disparities is well-documented,” Wiggins wrote. “It is unthinkable that the Constitution forbids a rational plan to reduce such disparities.”

The Supreme Court is scheduled to hear oral arguments on the guidelines Oct. 5.