Separation of Powers at Issue : Judges Hear Debate on Sentencing Rules

San Diego’s federal judges peppered lawyers for the Justice Department and the U.S. Sentencing Commission with questions Wednesday in the nation’s first test of the constitutionality of sweeping new sentencing guidelines.

All seven of the District Court judges in the Southern District of California, as well as one senior judge, convened the unusual session to hear arguments on a challenge brought by the Federal Defenders Office of San Diego and the Washington-based Public Citizen Litigation Group.

The defense lawyers say Congress improperly abdicated its responsibility to decide issues of public policy when it created the independent Sentencing Commission in 1984 and allowed it to make the most profound sentencing reforms in the history of the federal courts.

The guidelines, drawn up by the seven-member commission and imposed in November, all but eliminate probation for most offenders, wipe out the federal parole system and dramatically increase penalties for white-collar crimes.

Disliked by Judges

The new rules are widely disliked by federal judges, who lose much of their discretion and must now sentence by formula, and by defense attorneys who find them too harsh.

Constitutional challenges have already been filed in more than 40 cases in San Diego, according to Judy Clarke, head of the Federal Defenders Office here. The San Diego cases are the first of an expected wave of constitutional challenges across the country. The new guidelines apply only to crimes committed after Nov. 1, 1987.

The two-hour hearing Wednesday amounted to a three-way argument that pitted Justice Department and Sentencing Commission lawyers against each other, as well as against the defense lawyers.

Each of the judges in San Diego is expected to rule separately in the near future, and appeals are expected to follow quickly, lawyers said.

“My guess is there is a distinct possibility that any appeal may be a direct appeal to the (U.S.) Supreme Court,” Chief Judge Gordon Thompson Jr. said in a telephone interview.

Separation of Powers

At the heart of the defense lawyers’ argument is the principle of separation of powers among the three branches of government called for by the Constitution. They claim that both the makeup of the commission and the authority it was granted by Congress violate separation-of-powers provisions.

The commission was set up by Congress as an independent body within the judicial branch, with its seven members appointed by the president, who also has the power to remove them. Three of the seven members must be federal judges.

Alan Morrison, a lawyer for the Public Citizen Litigation Group, called establishment of the commission “a wholesale turnover of a legislative function without any standards to a judicial body.” Judges have the constitutional authority only to decide individual cases or controversies, not to set broad social policy, he said.

The commission ranked criminal offenses “both absolutely and relatively,” numbering crimes on a scale of 3 to 43, Morrison said.

‘Decided for Itself’

“The commission decided for itself whether particular crimes were more serious or less serious than each other,” he said.

“For all practical purposes, the sentencing guidelines are the sentencing law,” Morrison said, adding that such public policy decisions are “precisely the kinds of functions we normally have legislatures do.”

Douglas N. Letter, a lawyer for the Justice Department, conceded that a sentencing commission set up as part of the judicial branch would be unconstitutional, but he argued that the language of the 1984 law is irrelevant. The law specifically places the commission in the judicial branch. In reality, the commission performs a function in the executive branch, which has the authority to execute laws, Letter argued.

“The label that Congress placed on the Sentencing Commission is of no moment,” he said. “It has no actual effect.”

Letter added that the Justice Department “wholeheartedly supports the work of the Sentencing Commission and the sentencing guidelines.”

Frequent Interruptions

The judges frequently interrupted Letter’s argument with questions about the separation-of-powers issue.

“Does it undermine the independence of the judiciary to have these judges legislate for the entire judiciary?” asked Judge Judith N. Keep, referring to the three judges who are members of the commission.

Letter responded that it does not “if one considers that the judges are acting as members of the executive branch and not as judges.”

Later, Keep drew laughter from the crowded courtroom when she asked: “Could the D.C. judges appoint (Vice President George) Bush to sit as a part-time magistrate?”

‘Rule Making,’ Not Legislating

Letter responded that such an appointment might be constitutional.

“You talk in terms of guidelines,” said Thompson. “Aren’t you really establishing statutes? Aren’t you legislating, in effect?”

Letter responded that the commission is “rule making” rather than legislating.

The judges also frequently interrupted the argument of Kenneth S. Geller, a Washington lawyer who represented the Sentencing Commission. Geller disagreed with the Justice Department and said the commission is constitutional as it is described in the law.

“We think the court should think long and hard before declaring a statute unconstitutional which Congress gave so much attention to,” Geller said. He said there is ample precedent for Congress delegating and sharing its authority in regard to sentencing.