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May 19, 1988

United States of America
Wilbert S. Brodie

The opinion of the court was delivered by: GREENE

 Defendant was convicted on April 1, 1988 of possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). Since the offense took place after November 1, 1987, defendant's actions are covered by Title II of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, reprinted at 28 U.S.C. §§ 991-998 (hereinafter Sentencing Act or Act). *fn1" On April 15, 1988, his counsel moved to have the Act declared unconstitutional, and the Department of Justice filed an opposition on behalf of the United States. In short order thereafter, requests for participation as amicus curiae were filed by and granted to Public Citizen *fn2" and the United States Sentencing Commission. A hearing was held on May 12, 1988.

 The issue before the Court is whether the Sentencing Act is constitutional. A number of constitutional questions have been raised -- separation of powers, improper delegation of legislative authority, and denial of due process of law. As discussed below, the Court concludes that these challenges to the constitutional validity of the Act are valid.

 Moreover, permeating the various grounds of unconstitutionality is the broad problem of a dissipation of accountability with respect to both sentencing policy and individual sentencing decisions. As the Act and the implementing guidelines are drafted, no one -- criminal defendant, victim, and the public -- can know who or what branch of government is responsible for sentences that are imposed, and there is no one who can legitimately be held accountable, politically or otherwise, for sentences that may be regarded as too lenient or too harsh. The simple and constitutionally-tested system of allocating responsibility for crafting sentencing policy to Congress and for imposing individual sentences to a particular judge is essentially gone, replaced by a hodge-podge of contributions to sentencing from personnel from several different branches. The system thus departs from the basic principle that those who make or administer this nation's laws shall be accountable for their actions; it also departs from the Constitution's requirement for clear delineations between and among the three branches of government. Accordingly, as detailed infra, the Court holds the Sentencing Act to be unconstitutional.



 A. Sentencing Act

 The Sentencing Act became law on October 12, 1984. Its major component was the establishment of a new body, the United States Sentencing Commission (hereinafter Commission).

 The Commission is composed of seven members appointed by the President. Three of the members are federal judges, *fn3" chosen by the President from among six judges recommended by the Judicial Conference of the United States. All the members serve staggered six-year terms and are eligible for reappointment. The President may remove commissioners for neglect of duty, malfeasance in office, or "for other good cause shown." 28 U.S.C. § 991(a).

 It is the Commission's duty to establish sentencing policies and practices, also known as guidelines. Although the guidelines must be submitted to Congress, they do not require congressional approval to take effect; Congress would have to pass a new law to prevent them from becoming binding. The Commission's "guidelines" are not advisory, as the name implies, but they are binding on all federal sentencing judges. The government and the defendant have a right of appeal from a judge's sentencing decision both if there is an improper application of the guidelines and if a sentence is imposed that exceeds or falls short of the applicable guideline.

 The congressional directions to the Commission are notable for their lack of detail. The Commission is told in broadest terms to ensure certainty and fairness and to end unwarranted sentencing disparities while maintaining sufficient flexibility to take into account individual circumstances. Under the statute, the guidelines are to be consistent with four purposes of punishment: deterrence, protection of the public, rehabilitation, and punishment commensurate with the seriousness of the crime, but the Congress did not indicate a preference for one purpose over another.

 The statute further provides that the Commission should base its guideline system both on the characteristics of the offense and those of the offender. Although a number of factors are specified with respect to these characteristics, it has been left to the Commission to determine their relevance, if any, as well as their weight. The Commission must, however, take into account such factors as the prison population, the need to have career criminals serve maximum terms, and the relief of certain categories of first offenders from sentences of imprisonment. Finally, the Commission is given broad latitude to decide on such subjects as fines, restitution, supervised release, and probation, and it has the power under the statute to supplement and to amend its own guidelines.

 B. Commission Guidelines

 The guidelines issued by the Commission are extremely detailed, covering over 200 pages of text. The overall method of organization of the guidelines is as follows. Within each general category of crimes (e.g., Offenses Involving Criminal Enterprises and Racketeering), there are listed specific types of crimes or subcategories (e.g., Making, Financing, or Collecting an Extortionate Extension of Credit) and base "offense levels" from 1 to 43 are mandated which translate into ascending terms of imprisonment. *fn4" The base offense level for a particular violation may be varied on the basis of such factors as the offender's prior criminal history, *fn5" the character of the victim, obstruction of justice, and perjury. Still other guidelines deal with the effect of cooperation with law enforcement and acceptance of responsibility. The Commission decided to exclude from the sentence calculations in the main such factors, previously often used by judges, as mental or physical condition, age, education, previous employment record, family ties, and drug abuse.

 The sentencing range to be applied to a particular defendant is ascertained by consulting a table which lists vertically the offense level and horizontally the defendant's criminal history category. Judges must sentence within the range thus established and provide their reasons for selecting a particular sentence within that range. They may depart from the range for any reason only if the Commission failed to take the particular factor adequately into account.

 C. Litigation

 As might be expected with respect to a law that applies to all criminal sentences imposed by the federal district courts throughout the nation, and with regard to guidelines that mandate sentences in the most minute detail, the new system has generated a great deal of controversy and litigation. A substantial number of courts have issued declarations of unconstitutionality on various grounds; a lesser number have upheld the validity of the Act.


 Separation of Powers

 The principle of the separation of powers exists in substantial part to keep "the three great branches of the National Government . . . largely separate from one another" in order to preserve liberty. *fn6" As Madison said, *fn7" when the legislative and executive powers are joined, liberty will be in a jeopardy, and when the power of judging is joined with that of the executive, the judge might behave with the violence of an oppressor. *fn8" A principal complaint made on behalf of the defendant and by Public Citizen is that the Sentencing Act violates this principle. It is this claim that the Court will now explore.

 A. The Sentencing Commission May Not Constitutionally Be Made a Part of the Judicial Branch

 The Act establishes the Sentencing Commission as "an independent commission in the judicial branch of the United States. . . ." 28 U.S.C. § 991(a). In the view of this Court, the Commission is not properly a part of that branch both because of its membership and because of the functions it exercises.

 1. Membership

 The membership problem revolves around several factors. First and most obviously, the majority of the Commission's members are not judges or other judicial officers -- at a minimum an unusual situation with respect to what is described in the statute as a judicial body. *fn9" Moreover, the Commission entirely lacks the independence that is the hallmark of federal judicial power. Unlike Article III judges, the Commission members do not serve for life; their terms are for six years. It is this limited term that gives rise to what may be the most troublesome aspect in this context: the presidential role in controlling the commission and in overseeing its operations.

 All seven members of the Commission are appointed by the President, and he also chooses the chairman. The members serve for staggered terms, and it is again the President who decides who shall have which term, and whether or not he or she will be reappointed. Finally, the President, and he alone, has the power to remove members of the Commission for cause.

 It is also noteworthy that two representatives of the President -- the Attorney General and the Chairman of the Parole Commission -- are ex officio members of the Commission. This is not an insignificant, formalistic matter: these two officials may be expected to act as the eyes and ears of the Executive Branch, and they may be expected also to use their own persuasive powers as well as the persuasive power inherent in their offices upon the members of the Commission to guide the Commission policy. *fn10"

 The Supreme Court has remarked in several recent decisions on the vice inherent in the domination of a body which is part of one branch of government by personnel from another branch. In Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986), the Court held that the Comptroller General may not constitutionally perform executive functions because he is subject to removal by the Congress and hence under the potential influence of the legislative branch of government. *fn11" Even more directly on point with regard to the problem here, the Court stated in United States v. Will, 449 U.S. 200, 217-18, 66 L. Ed. 2d 392, 101 S. Ct. 471 (1980), that a "Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government."

 These decisions are consistent with Madison's observation in The Federalist No. 48, that "none of [the branches of government] ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers." It is this Court's conclusion that, because of the significant presidential powers with respect to the membership of the Sentencing Commission, that body -- ...

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