However, the sentence here was not mandated by the Congress or any other legislative body, but by an administrative agency. As will now be discussed, this difference is crucial.
Every Supreme Court decision that has upheld severe sentences against Eighth Amendment challenges has rested squarely on the proposition that the courts are not to second-guess the legislature -- a coordinate branch of government -- with respect to its decision as to the appropriate punishment. The decisions of the Supreme Court and lower federal courts are replete with examples of the deference properly accorded the legislature in deciding how individuals who break the laws of society should be punished.
In Harmelin the Court definitively stated that "it is beyond question that the legislature has the power to define criminal punishments without giving the courts any sentencing discretion." Harmelin, 111 S. Ct. at 2708 (Kennedy, J., concurring) (quoting Chapman v. United States, 500 U.S. , 111 S. Ct. 1919, 1929, 114 L. Ed. 2d 524 (1991)). This sentiment has been consistently expressed in many other Supreme Court decisions. See Rummel, supra, 445 U.S. at 274 (". . . the length of the sentence actually imposed is purely a matter of legislative prerogative . . ."); Hutto, supra, 454 U.S. at 374 ("federal courts should be reluctant to review legislatively mandated terms of imprisonment"); Gore v. United States, 357 U.S. 386, 393, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958) (whatever one's views of the severity, efficacy or futility of a sentence, "these are peculiarly questions of legislative policy").
On a more general plane, the Supreme Court made it clear in Mistretta, supra, that when a court is asked to invalidate a "statutory provision that has been approved by both Houses of Congress and signed by the President . . . it should only do so for the most compelling constitutional reasons." Mistretta, supra, 488 U.S. at 384.
The U.S. Sentencing Commission obviously is not a legislative body. It lacks the legitimacy that the vote of the people confers on the Congress and the state legislatures. Consequently, the Commission also lacks the attribute of deference that courts owe to legislative bodies in a democratic society. This lack of deference is particularly significant when the Commission's action arguably denies a citizen his individual rights protected by the Constitution, such as the right not to be subjected to cruel and unusual punishment and not to be deprived of liberty without due process. The lack of deference is likewise important when there is a direct interference with the power of federal courts to exercise their historic sentencing function in a situation where a court is required to impose a sentence that is fundamentally at odds with its judicial notions of fundamental justice.
Although there are not many precedents in this field, if only because the Sentencing Commission and its guidelines are so new in historic terms, our Court of Appeals recently issued an opinion which generally supports the reasoning discussed above. In United States v. Price, No. 91-3335, 1993 U.S. App. LEXIS 8968 (D.C. Cir. April 23, 1993), the Court of Appeals was confronted with a sentence imposed, as here, in a career offender context. The specific issue was whether one of the Commission's guidelines covered a conspiracy, a subject not encompassed in the statutory framework itself. However, in discussing the subject, the court made observations which are highly pertinent here, as follows:
It is true that courts will normally sustain an act of Congress so long as it is within the bounds of congressional authority, even though Congress may not have even hinted at the supporting rationale, see, e.g., Flemming v. Nestor, 363 U.S. 603, 612, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960), and perhaps will do so even if Congress has invoked an improper one. But whatever the exact deference owed Congress on constitutional matters, the Sentencing Commission cannot be said to occupy a parallel position vis-a-vis its legislative mandate. It is simply an independent agency. See Mistretta, 488 U.S. at 374, 393. Like other independent agencies, it exercises a much narrower delegation of power than Congress's under the Constitution, see McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), and its agenda is far less crowded than Congress's. There seems no reason to except it from Chenery's principle that "if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law." 318 U.S. at 94.