United States v. Bogle

ARONOVITZ, District Judge

(concurring specially):

I specially concur in the majority opinion of my colleagues that the separation of powers doctrine as applied to the Guidelines portion of the Sentencing Reform Act of 1984 renders it unconstitutional. However, I am convinced that the matter should be addressed further on other issues because of the seriousness of its effect on the judicial system. The inevitable recurrence of the dispute over the Sentencing Guidelines, and the likelihood of future challenges on additional grounds, makes it prudent to address them at this stage. C.f. Synar v. United States, 626 F.Supp. 1374, 1382-1383 (D.D.C.), affirmed sub nom. Bowsher v. Synar, 478 U.S. 714 , 106 S.Ct. 3181 , 92 L.Ed.2d 583 (1986); Hagans v. Lavine, 415 U.S. 528, 546 , 94 S.Ct. 1372, 1384 , 39 L.Ed.2d 577 (1974) (doctrine of constitutional decision-avoidance is not ironclad).

In addition to the separation of powers problems discussed in the Court’s opinion, *1162 it is clear that the delegation of legislative power to the Sentencing Commission is so excessive as to violate the basic premises of our constitutional scheme of government. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241 , 79 L.Ed. 446 (1935). Under the prevailing test, Congressional delegation of legislative or quasi-legislative power is proper if Congress “shall lay down by legislative Act an intelligible principle to which the person or body authorized to [exercise the delegated power] is directed to conform____” J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 , 48 S.Ct. 348, 352 , 72 L.Ed. 624 (1928). An intelligible and meaningful standard is necessary to ensure that in implementing Congressional policy, an agency operates within the law, rather than being left to create law of its own, which would constitute an intolerable abdication of the legislative function to unelected officials. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-214 , 96 S.Ct. 1375, 1391 , 47 L.Ed.2d 668 (1976); Yakus v. United States, 321 U.S. 414, 425 , 64 S.Ct. 660, 667-668 , 88 L.Ed. 834 (1944).

The application of the “intelligible principle” test is essential in the context of a Commission which functions to determine the penalties attaching to federal crimes. Where fundamental rights and liberties of individuals are implicated, delegation of legislative authority must be scrutinized with particular care, and, if necessary to preserve the constitutional validity of enabling legislation, the delegation will be narrowly construed. Kent v. Dulles, 357 U.S. 116, 129 , 78 S.Ct. 1113, 1120 , 2 L.Ed.2d 1204 (1958); Ernst & Ernst, 425 U.S. at 213-214 , 96 S.Ct. at 1391 .

Moreover, fixing punishment has repeatedly been held to be a uniquely legislative function. Whalen v. United States, 445 U.S. 684, 688-689 , 100 S.Ct. 1432, 1436 , 63 L.Ed.2d 715 (1980); United States v. Evans, 333 U.S. 483, 486 , 68 S.Ct. 634, 636 , 92 L.Ed. 823 (1948). Indeed, it may reasonably be questioned whether delegation of such “fundamental moral judgments” is ever appropriate. See Liman, The Constitutional Infirmities of the United States Sentencing Commission, 96 Yale L.J. 1363 (1987). Even admitting of some limited delegability, however, it is clear that the enabling act under which the Sentencing Commission regulates imposes no meaningful limit on administrative discretion.

Despite an appearance of considered control, the Guidelines portion of the Act is but an importuning that the Sentencing Commission exercise some rational discretion in formulating sentencing procedures. New meaningful restrictions on this discretion are set forth. It is primarily for the Sentencing Commission to determine whether punishment by fine, incarceration, or probation is most appropriate, and to determine the amount of fine or the length of incarceration which should be imposed.

The Commission is directed to consider such open-ended concepts as the “grade of the offense,” the “circumstances under which the offense was committed,” and the “community view of the gravity of the offense,” 28 U.S.C. Section 994 (c), but is given no indication of the means by which these factors are to be determined, or their relative importance. In fact, the Commission is specifically directed to take the aforementioned matters into account “only to the extent that they do have relevance.” This preliminary determination of relevance constitutes the demarcation of the “field within which the [regulatory body] must act,” Yakus, 321 U.S. at 425 , 64 S.Ct. at 668 , and the result of its delegation to the Sentencing Commission is an inability to determine whether the actions of the Commission are in compliance with the legislative will. It is in this sense that Congress has most obviously failed to express meaningful and intelligible principles to guide the Commission.

In instances where the Guidelines impose a term of imprisonment, the Act restricts the amount by which the range may vary to the greater of 25 percent or six months. 28 U.S.C. Section 994 (b)(2). In the context of the broad sentencing ranges which currently prevail in our criminal code, this restriction has the paradoxical effect of *1163 increasing the substantive significance of the Guidelines promulgated by the Commission. By limiting sentencing at one or the other end of the statutory range, the Commission has the power to fundamentally reorder our criminal code of behavior — a task the delegation of which must be accompanied by the most restrictive legislative conditions, if it may be delegated at all.

The Commission’s responsibility for establishing categories of defendants reflects a similar delegation of authority to determine substantive policy. The Commission is directed to assure that the Guidelines it promulgates reflect the “general inappropriateness” of considering education, vocational skills, and certain other individual characteristics, 28 U.S.C. Section 994 (e), and to this extent the delegation is accompanied by more detailed principles than is the Commission’s responsibility for determining offense categories. Because the Commission is vested with the ultimate responsibility for determining the relevance of various characteristics distinguishing criminal defendants, however, the tentative exclusion of certain mitigating characteristics does not amount to an intelligible and meaningful limitation of the Commission’s authority.

In addition, the Sentencing Guidelines promulgated by the Commission are constitutionally infirm because they violate the Due Process Clause of the Fifth Amendment. Consideration of the individual characteristics of a defendant and the circumstances of the crime he has committed is an historical function of a sentencing court. Such individualized sentencing is essential to ensure that there is a rational relationship between the finding of guilt and the punishment imposed. “So that the punishment fits not only the crime but the defendant as well, a sentencing judge must have ‘the fullest information possible concerning the defendant’s life and characteristics.’ ” United States v. Fulbright, 804 F.2d 847, 853 (5th Cir.1986), quoting Williams v. New York, 337 U.S. 241, 247 , 69 S.Ct. 1079, 1083 , 93 L.Ed. 1337 (1949).

The Sentencing Guidelines severely limit the traditional discretion of the sentencing judge by removing entirely consideration of certain characteristics of the defendant and allowing other characteristics to be considered only for limited purposes. Application of the Guidelines negates the judge’s knowledge of the defendant which has previously been considered essential to the sentencing process. To the extent that courts are no longer free to consider the individual circumstances which might mitigate sentencing, punishment within a narrowly circumscribed range, which is predetermined by application of a mechanistic administrative formula, must be considered so arbitrary as to violate the Due Process Clause.

The right to individualized sentencing in a noncapital case has been considered to arise from legislative initiative rather than the Constitution. Sumner v. Shuman, - U.S. -, 107 S.Ct. 2716, 2722 , 97 L.Ed.2d 56 (1987). It does not follow that in removing or circumscribing sentencing discretion, the legislature is free to erect a system of sentencing which precludes, in effect, the presentation of significant exculpatory evidence, whether that evidence bears on the establishment of the elements of the offense or the imposition of the sentence. In so doing, the Guidelines portion of the Act, and the Guidelines themselves, trample a defendant’s right not to be sentenced on the basis of invalid premises or inaccurate information. United States v. Satterfield, 743 F.2d 827, 840 (11th Cir.1984); United States v. Hodges, 556 F.2d 366, 369 (5th Cir.1977).

I recognize that it is within the sound discretion of the legislature to determine, in the first instance, the factors and circumstances to be considered during sentencing. Legislative initiative must always be confined by the due process accorded a criminal defendant, however, and where, as here, the implementation of legislative policy conflicts with rights of a constitutional magnitude, the latter must prevail.