Amicus Curiae Brief — Mistretta v. United States

4 0 Suoreme Court, USL

Nos. 87-1904 & 87-7028 FiL ED

28 1988

IN THE , JOSEPH F. SPANIOL, JR,

CLERK

Supreme Court of the United

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Petitioner,

Vv.

JOHN M. MISTRETTA,

Respondent.

JOHN M. MISTRETTA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writs Of Certiorari Before Judgment

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF AMICUS CURIAE, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

IN SUPPORT OF RESPONDENT-PETITIONER

MISTRETTA

Of Counsel: BENSON B. WEINTRAUB

BENEDICT P. KUEHNE

NINA J. GINSBERG, Esq. Counsel of Record

DENNIS N. BALSKE, Esq. SONNETT SALE & KUEHNE, P.A.

Co-Chairs, Amicus Committee Atico Financial Center, #500

National Association of 200 Southeast First Street

Criminal Defense Lawyers Miami, Florida 33131

(305) 358-2000

Counsel for National

Association of Criminal

Defense Lawyers

a ST aT

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

-s

7

QUESTIONS PRESENTED!

1. Did Congress violate principles of separation of

powers when it assigned to the Sentencing Commis-

sion, a body within the judicial branch, three of whose

seven voting members must be Article III judges, the

power to issue substantive, binding sentencing guide-

lines for federal crimes?

2. Did Congress make an excessive delegation of

legislative authority to the Sentencing Commission to

issue sentencing guidelines, where Congress failed to

make basic policy choices and failed to establish in-

telligible principles to constrain the Commission re-

garding fundamental areas of the guidelines?

5. When Congress enacted a new determinate sen-

tencing system in the Sentencing Reform Act, would

it have intended to abolish parole and substantially

restructure good behavior adjustments if the sen-

tencing guidelines, which form the core of the new

system, were found unconstitutional and hence unen-

forceable?

‘The phrasing of the questions presented is taken from the

brief of Respondent-Petitioner Mistretta.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED | ....ccccccccescosecesssseseusnnn i

TABLE OF CORTENTS ..cccscsscsccescssccesssnnsnnnennenna il

TABLE OF AUTIBORITIES ...cccisticcecssoccssessee ill

STATEMENT OF INTEREST OF AMICUS CURIAE ........

SUMMARY OF THE ARGUDINT ccccccoccccccccccsssssseusun

ARRGUBBENT _ ...coccccocccccesoccnsescnsssnnssensusnunnennnnnnnnnnnnnnnE

I. THE UNITED STATES SENTENCING

COMMISSION VIOLATES THE SEPARA-

TION OF POWERS DOCTRINE BECAUSE

OF ITS REQUIRED MEMBERSHIP OF

ARTICLE [TI JUDGES. .cccccccsccccsssscnssessnseess 5

A. The Judicial Role Envisioned By The Sen-

tencing Reform Act Impairs The Indepen-

dent Functioning Of The Judiciary ......... 5

B. The Presidential Removal Power Over

The Sentencing Commission Violates The

Separation of Powers Doctrine. ............. 17

Il. THE AUTHORITY GRANTED TO THE

COMMISSION BY CONGRESS TO PROM-

ULGATE SENTENCING GUIDELINES

REPRESENTS AN UNCONSTITUTIONAL

AND EXCESSIVE DELEGATION ............ 20

Ill. THE PROVISIONS OF THE SENTENCING

REFORM ACT THAT ABOLISH PAROLE

AND LIMIT THE AVAILABILITY OF GOOD

TIME CANNOT BE SEVERED FROM THE

SENTENCING GUIDELINES .................... 24

CORTE UBBORN ococococeccccccsesccencececcunnnnnnnnannennnannnnEE 28

ill

TABLE OF AUTHORITIES

CASES: Page

A.L.A. Schecter Poultry Corp. v. United States, 295

i ccnnaconevenecs 22

Alaska Airlines, Inc. v. Brock, 107 S.Ct. 1476

eda nincncccceoccccscccocccecccecscosees 25

Application of the President's Commission on Or-

ganized Crime (Subpoena of Scaduto), 763 F.2d

TS 10,11

Arizona v. California, 373 U.S. 546 (1968) 000... seo

Bowsher v. Synar, 478 U.S. 714 (1986) ........... 7,18,19,21

Buckley v. Valeo, 424 U.S. 1 (1976) oo... 6,8,18

Chandler v. Judicial Council of the Tenth Circuit,

a socesncees 9

Chevron, U.S.A., Inc. v. National Resources Defense

Council, Inc.. 467 U.S. 837 (1984) ........ 19

Commodities Futures Trading Comm. v. Schor, 478

a scecccccccccoees 11

Consumer Product Safety Commission v. G.T.E.

Sylvania, Inc., 447 U.S. 102 (1980) wc. 26

Dorszynski v. United States, 418 U.S. 424 (1974). 17

Flast v. Cohen, 392 U.S. 83 (1968) ......... 4

Hobson v. Hansen, 265 F.Supp. 902 (D.D.C.

ei cnsccccnedccccceccucscceseccccccccees 12

Humphrey's Executor v. United States, 295 U.S. 602

en cncccncsecececessccscocccccescecececee 6,18

In Matter of President’s Commission on Organized

Crime (Subpoena of Scarfo), 783 F.2d 370 (3d

cc ccinnsnscscscnssescescoorers 10,11

In re: Certain Complaints Under Investigation, 783

F.2d 1488 (11th Cir.), cert. denied, 477 U.S.

ie cicccncnccnnsascscscososecccccsceccecees 9

iv

Table of Authorities Continued

Page

INS v. Chadha, 462 U.S. 919 (1983) ..........cccceeeeees 16,20

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

BG CHD eitecniscesscnsesniadsiniteiintbinscepuetnsneiveiiuneed 22

Kent v. Dulles, 347 U.S. 116 (1958) «0.00... cece eee ee 23

Massachusetts v. Mellon, 262 U.S. 447 (1923) ....... 6

Miller v. Florida, 107 S.Ct. 2446 (1987) .............. 14

Missouri Kan. & Tenn. Ry. Co. v. May, 194 U.S.

BE CI ccecsesscnsescnststecnintsantesistiantaapvinnmncnnnens 8

Morrison v. Olson, 108 S.Ct. 2597 (1988) .......... 10.14,15

Muskrat v. United States, 219 U.S. 346 (1911) ..... 7

Myers v. United States, 272 U.S. 52 (1926) .......... 16,19

National Cable Television, Inc. v. United States, 415

if 2 Ff) | Pere eee 22

Nixon v. Administrator of General Services, 433

is er Ff, eee ene 8,9

Northern Pipeline Construction Co. v. Marathon

Pipeline Co., 458 U.S. 50 (1982) «0... 12,19

Panama Refining Co. v. Ryan, 293 U.S. 388

(TBD) cccnccccccccsccccocccsccccssssscesconensseosessssessssconsonses 22

Regan v. Time, Inc., 468 U.S. 641 (1984) ............ 26

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ......... 9

Synar v. United States, 626 F.Supp. 1374 (D.D.C.

SOE xssccsisccnsienstseisecnictiotesinetiiasanassiinataninniiannnspeadats 21

United States v. Allen, 685 F.Supp. 827 (N.D.Ala.

BOG Gate BIRD ccccesncscnrcctcccsescssesnsecssccnenantnccnsese 27

United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.

DI ccccisinssitsnntninscsacvisdacedianensenennstianadinnnineindiens 12

United States v. Bogle, ___ F.Supp. —— , 1988

Westlaw 60560 (S.D.Fla. June 15, 1988)

GD TIED cncncncccscscscnscosenscunncvesncsessnsstsendnnnsabacs 6,7,13,16

United States v. Bogle, ___ F.Supp. —__ , Case No.

87-856-Cr. Marcus (S.D.Fla. June 30, 1988) (en

ED ccccisniicnsnsninnsseiittintennenieieasanianadinsaneitemianinduts 27

United States v. Bolding, 683 F. Supp. 1003 (D.Md

BI BUTI cccercececccscssesccccioncnnsiacesesecosnseniennie 12

EE —————

ee ee ee ae Tey

Table of Authorities Continued

Page

United States v. Brittman, __ F.Supp. __ , 1988

Westlaw 54178 (E.D.Ark. May 27, 1988) ....... 23

United States v. Brodie, _— F.Supp

1988 Westlaw 52990 (D.D.C. May 1 19,

EERE Oe Reto nraNutr rs WANG 13,14,22,23

United States v. Elkin, 731 F.2d 1005 (2d Cir. 1984),

cert. denied, 469 U.S. 822 (1984) ...............00.. 17

United States v. Estrada, 680 F.Supp. 1312 (D.Mn.

RRC ORE Eee ie ae ce RICE one ay 13,14

United States v. Evans, 333 U.S. 483 (1948) ........ 17

United States v. Grayson, 438 U.S. 41 (1978) ....... 25

United States v. Kane, __ F.Supp. __ , 1988

Westlaw 67692 (N.D.Ga. June 28, 1988) ........ 13

United States v. Lopez, 684 F.Supp. 1506 (C. D.Cal.

Ne IEEE denuiicesnsuianiptendsdedsriasnaietbetcieinunss 13

United States v. Mendez, __ F.Supp. ,_ 1988

Westlaw 62634 (S.D.N.Y. June 16, 1988) ...... 13

United States v. Molina, — F.Supp. , 1988

Westlaw 63254 (D.Conn. June 16, 1988) ........ 13,25

United States v. Nixon, 418 U.S. 688 (1974) ........ 10

United States v. Olivencia, __ F.Supp. __ , 1988

Westlaw 36487 (S.D.N.Y. April 20, 1988) ...... 12,19

United States v. Perez, 685 F.Supp. 990 (W.D.Tx.

I saciinSiochaadeinieiktiartiadd nh ae 3,13

United States v. Robel, 389 U.S. 258 (1967) .......... 20,23

United States v. Rosario, —— F.Supp 1988

Westlaw 64343 (N.D.IIl. June 28. 1988) aaaaaaae 13

United States v. Serpa, F.Supp

1988Westlaw 71484 (D.Neb. July 12, 1988) (e (en

RESET EE ERE N Ce Rene eat RUC RR me OO Ie 9

United States v. Smith, — F.Supp 1988

Westlaw 25223 (D. Colo. March Os, 1988) cael 15

United States v. Swapp, —— F.Supp. —_ ,

88-Cr-006J (D.Utah July 8, 1988)

CE I eiheseatinceensisicesetandesdaiinidiasancetinisidececniaaiiitis 9,12,20

Table of Authorities Continued

Page

United States v. Terrill, —— F.Supp. 1988

Westlaw 59768 (W.D.Mo. fo. June 13, 1988) jade 13

United States v Viereck, 318 U.S. 236 (1943) ...... 17

United States v. Will, 449 U.S. 200 (1980) ........... 11

United States v. Williams, —_— F.Supp. ——

1988 Westlaw 63614 (M. D.Tenn. , om 23, 1988)

(ON DANC) ........csssscceesssesreeeeessssteeesssssteeeeteneenaeees 23

United States v. Wittberger, 18 U.S. (5 Wheat.) 76

(1BBO) .....ccccsosccsssnsesscssonsscosneseosessesseonessnccsocososees 12

Weiner v. United States, 357 U.S. 349 (1958) ....... 18

Whalen v. United States, 445 U.S. 684 (1980) ...... 22

Williams v. New York, 337 U.S. 241 (1949) ......... 17

Yakus v. United States, 321 U.S. 414 (1944) ........ 21,22

Youngstown Sheet & Tube Co. v. Sawyer, 343 USS.

B79 (1952) ......cccccccssssscccscssssessreresssnssossosssssessces 22

CONST:TUTIONAL PROVISIONS:

United States Constitution

Btiln 1 BF ncccccccccscecescessscsoscssovescnssevensoonersosssence 20

Articte TET, $B ......cccccccsccccccssssestuesessssccnsssecsosssseses 9

STATUTES AND RULES:

18 U.S.C. §3551 ..............cccccccccccecresecsecccscesseereeeeeeees 2,26

1B U.S.C. SBGEB ....cccccsesesrscrcsccscscesscsscocssssscsescoseneoses 26

18 U.S.C. $8624 ........ccscesseesreesrecseeseresssessereeensennes 26

GB U.G.C. BOD ..ccccccccccccccsccsscesccosescossoccsosesensessss 3,4,6,7,17

BB UBC. BOOB nncccocorcsnevecscccrecssccescncsvssccssensenssessoares 4

GB UBC. BODE ccccrccccrsccoccsscoscccccccssoressesensesosssossoesst 3,4,7

BB U.S.C. $995 ..0...cccssossscsesccresovevsssvessssersssssesessoecees 4

Federal Rules of Criminal Procedure Rule 35 ....... 25,27

vii

Table of Authorities Continued

Page

OTHER AUTHORITIES:

Liman, The Constitutional Infirmities of the United

States Sentencing Commission, 96 Yale L.J.

I I ase ices daledelnl ahahaha aia ical ine 9

F. Frankfurter, “Advisory Opinions,”’ 1 Encyclo-

pedia of the Social Sciences (1930) ................. 15

Schoenbrod, The Delegation Doctrine: Could the

Court Give it Substance? 83 Mich. L.Rev. 1223

RRR TERS AE SS irene ne 21

The Federalist No. 47 (J. Madison) ...............000c0008 8,16

The Federalist No. 81 (A. Hamilton) ..................... 8

Wood, The Creation of the American Republic

REE ERAS ES OREN ecto CORN Uy oR 6

United States Department of Justice, Office of Le-

al Counsel, Memorandum for Judge Wilkins,

hairman, United States Sentencing Commis-

I ee a I eliciiiitheaceiiincnnaiiiceniiisitichiaticdinniine 3

1984 U.S. Code Cong. & Admin. News 3182 ....... 6,26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

Nos. 87-1904 & 87-7028

UNITED STATES OF AMERICA,

Petitioner

V.

JOHN M. MISTRETTA,

Respondent.

JOHN M. MISTRETTA,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Writs Of Certiorari Before Judgment To The

United States Court Of Appeals For The Eighth

Circuit

BRIEF OF AMICUS CURIAE, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

IN SUPPORT OF RESPONDENT-PETITIONER

MISTRETTA

STATEMENT OF INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia non-profit corporation

founded in 1958. NACDL has an affiliated membership of

more than 10,000 lawyers, law professors, and interested

legal professionals from every state, most of whom are

engaged actively in defending criminal prosecutions and

protecting individual rights. NACDL is the only national

bar organization on behalf of public and private defense

lawyers. The American Bar Association recognizes NACDL

as an affiliated organization and awards it full represen-

tation in the ABA House of Delegates.

NACDL was founded to promote study and research in

the field of criminal defense law, to disseminate and ad-

vance knowledge of the law in the field of criminal defense

practice, and to encourage the integrity, independence, and

expertise of criminal defense lawyers and criminal justice

professionals. NACDL’s members have worked to protect

the rights and liberties of those accused of criminal of-

fenses, and to promote the fair and proper administration

of criminal justice.

NACDL’s purpose in appearing as amicus curiae is to

assist the Court in evaluating the constitutionality of both

the sentencing guidelines and its derivative legislation.

NACDL has appeared as amicus curiae in more than

twenty district court cases focusing on the constitutionality

of the Sentencing Commission and the sentencing guide-

lines. No criminal justice issue in recent history has had

such a potential impact on the criminal justice system.

Consent has been granted by both parties to the filing

of this amicus brief.

SUMMARY OF THE ARGUMENT

The sentencing provisions of the Comprehensive Crime

Control Act of 1984,2 known as the Sentencing Reform

2 Pub.L. 98-473, Title II, c.Il, Oct. 12, 1984, 98 Stat. 2031, as amended

by Pub.L. 99-217, §§2, 4, Dec. 26, 1985, 99 Stat. 1728, Pub.L. 99-646,

§35, Nov. 10, 1986, 100 Stat. 3599. See 18 U.S.C. §3551 note (Supp.

1987), as amended by the Sentencing Act of 1987, Pub.L. 100-187 (Dec.

7, 1987).

a

Act of 1984 (“Sentencing Reform Act’’), established an

agency within the judicial branch called the United States

Sentencing Commission (‘Commission’). 28 U.S.C. §991.

The Sentencing Reform Act directs the Commission to

promulgate determinate sentencing guidelines for every

federal offense and to insure that the guidelines promote

“certainty and fairness in the purposes of sentencing.’”

The introduction of guideline sentencing to the federal

criminal justice system drastically alters the traditional

functions of the judiciary, defense counsel, the United

States Probation Office, and prosecutors.

Congress delegated to the Commission the power to set

sentences for all categories of offenders who commit

crimes. The delegation shifts to the Commission the tra-

ditional role of the courts to determine the sentence to be

imposed upon a particular defendant. The Commission has

been given both legislative and rulemaking power to es-

tablish and amend regulations (the guidelines).’ The Com-

mission is empowered to issue policy statements which

must be accorded substantial deference by the sentencing

judge.° The Commission has adjudicatory power over

petitions to modify the guidelines.’ The Commission also

* The Commission is an independent agency in the ‘‘judicial branch.”’

28 U.S.C. §991(a). However, the Department of Justice has taken the

position in cases involving the guidelines that the Commission exercises

executive functions and is not an agency of the judicial branch, put is

in the executive branch. See United States Department of Justice, Office

of Legal Counsel, Memorandum for Judge William W. Wilkins, Jr.,

Chairman, United States Sentencing Commission (January 8, 1987);

United States v. Perez, 685 F.Supp. 990, (W.D.Tex. 1988).

28 U.S.C. §$§991(bX1\B), 994(a}(nXSupp. III 1985).

* 28 U.S.C. §994(aX1Xb),(0),(p) S.Rep. No. 98-225 at 168 98th Cong.,

Ist Session September 14, 1983, hereinafter cited as ‘‘S.Rep.’’ and

referred to as the Report.

*28 U.S.C. §994(aX2).

728 U.S.C. §994(s).

exercises more traditional executive functions: conducting

training programs; recommending legislation; conferring

with the Bureau of Prisons and other agencies; and col-

lecting, generating and distributing information.“

The Commission is a permanent body composed of seven

voting members, at least three of whom must be federal

judges, appointed for six year terms by the President, with

the advice and consent of the Senate. The President can

remove commissioners for neglect of duty, malfeasance in

office, or other good cause.’ The federal judges serving

on the commission do not resign from the bench, even

though all Commissioners serve full-time for the first six

years and the chair serves full-time thereafter.’®

The delegation to the Commission of the traditional ju-

dicial sentencing role to be carried out by legislative rule-

making and executive enforcement violates the

constitutional principle of separation of powers. Congress

has no authority to give the power to promulgate sen-

tencing legislation to an agency which includes federal

judges among its membership. The required presence of

judges in their judicial roles places the Article III judges

in the constitutionally awkward position of engaging in

binding rulemaking and statutory administration. The con-

stitutional independence of Article III judges is compro-

mised, because the President’s removal power gives the

executive branch abundant unfettered control over the

Commission.

The delegation to the Commission of the authority to

promulgate sentencing guidelines is excessive where the

Commission’s role, responsibilities, and power are unbri-

dled and unchecked. Congress cannot delegate this core

legislative function; even if it could do so, the method of

delegation to the Commission is so lacking in intelligible

*28 U.S.C. §994(o}(s), (w), §995(aK12)(20).

* 28 U.S.C. §991(a).

© 28 U.S.C. §992(c).

Le A |

rules and principles as to be standardless and unconsti-

tutional.

Upon a finding that the Sentencing Reform Act is un-

constitutional with respect to the sentencing guidelines,

the Court should declare that the related provisions of the

Act are not severable from the unconstitutional portion.

The Act itself must be read as a whole, with the guidelines

being the central focus of a comprehensive revision of the

sentencing code. The Act, without the guidelines, promotes

the very unfairness and disparity which was to be elimi-

nated by the sentencing guidelines. Consequently, Con-

gress would not have enacted the related provisions without

the guidelines themselves.

ARGUMENT

I. The United States Sentencing Commission Violates

The Separation Of Powers Doctrine Because Of Its

Required Membership Of Article III Judges.

A. The Judicial Role Envisioned By The Sentencing Re-

form Act Impairs The Independent Functioning Of The Ju-

diciary.

The strength and endurance of our federal government

results from the foresight of the framers of our Consti-

tution, who created a secure separation of power among

and between the three branches of government. The Con-

stitution assigned distinct powers and responsibilities to

the three coordinate branches, devising a system of checks

and balances which hinders excessive control by any one

of the branches. The aggregation of power in one branch,

or the exercise of non-branch authority by another, creates

an imbalance which fosters constitutional crisis. The Sen-

tencing Reform Act has just that effect. In order to bring

equilibrium back to our governmental system, the Court

must declare that the Sentencing Reform Act and the

sentencing guidelines are unconstitutional.

The Sentencing Commission is legislatively designated

as ‘‘an independent commission in the judicial branch.” 28

U.S.C. §991(a).!! Notwithstanding this congressional mon-

iker, the Commission does not act like a creature of the

judicial branch. Nor can the Commission be a judicial

agency if it is to accomplish its legislative purpose. As the

agency directed to make and execute the law, the Com-

mission performs legislative, executive and administrative

duties. Buckley v. Valeo, 414 U.S. 1, 134-135 (1976); Hum-

phrey’s Executor v. United States, 295 U.S. 602, 623 (1935).

This puts the Commission on a collision course with the

Constitution, because the judiciary is being asked to both

write and execute the very laws which it is required to

apply. This collaborative effort between the judicial and

the executive and legislative branches compromises the

very independence and impartiality of the federal bench,

characteristics which are essential to our system of jus-

tice.”

To analyze the separation of powers problem, it is es-

sential to recognize what the Commission does. Its purpose

is to fix the punishment for the entire spectrum of the

federal criminal code. The Commission formulates policy

decisions relevant to sentencing, and yet the Act mandates

the close collaboration of the judicial and executive

branches. This ‘‘judicial’’ Commission acts not on the basis

of actual cases or controversies, but as a legislative and

policy setting government agency.'* Massachusetts v. Mel-

“Placement of the Commission in the judicial branch is based upon

the Commmittee’s strong feeling that, even under this legislation, sent-

encing should remain primarily a judicial function.”” Report at 159,

reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3342.

‘* The separation of powers is the definitive characteristic of Amer-

ican constitutional government. G. Wood, The Creation of the American

Republic, 1776-1787, at 51 (1969); United States v. Bogle, F.Supp.

—_., 1988 Westlaw 60560 (S.D.Fla. June 15, 1988) (en banc).

's Because the Sentencing Reform requires that three of the seven

lon, 262 U.S. 447, 482 (1923). See also Muskrat v. United

States, 219 U.S. 346, 355 (1911).

The Commission’s close interaction with the judiciary is

not limited to the judges who serve as commissioners.

Individual judges are made subservient to the Commission,

with the requirement that all judges submit written reports

to the Commission on every sentence imposed. 28 U.S.C.

§994(w). The Judicial Conference is required to perform a

number of tasks essential to the operation of the Com-

mission, including recommending a list of six judges to

serve on the Commission, 28 U.S.C. §991(a), and submit-

ting an annual report on the operation of the guidelines.

28 U.S.C. §994(0).

The doctrine of separation of powers is one of the most

important checks on governmental power in the Consti-

tution. The premise of the doctrine was set out by the

Court in Bowsher v. Synar, 478.U.S. 714, , 106 S.Ct.

3181, 3186 (1986):

The Constitution sought to divide the delegation

powers of the new Federal Government into three

defined categories, Legislative, Executive and Ju-

dicial. INS v. Chadha, 462 U.S. 919, 951 (1983).

The declared purpose of separating and dividing

the powers of government, of course, was to

“‘diffus[e] power the better to secure liberty.”’

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 635 (1952) (Jackson, J. concurring).

Structuring government into three separate branches rec-

ognizes that the necessary powers wielded by each branch

is different, and that those powers should be carefully

defined:

voting members of the Commission “‘shal! be federal judges,’ 28 U.S.C.

§991(a), absent membership by the judiciary, the Commission could not

function. United States v. Bogle, ___F Supp. —_, 1988 Westlaw 60560

(S.D.Fla, June 15, 1988) (en banc).

[t]he accumulation of all powers, legislative, ex-

ecutive, and judiciary, in the same hands, whether

of one, a few, or many, and whether hereditary,

self-appointed, or elective, may justly be pro-

nounced the very definition of tyranny.

The Federalist No. 47, at 301 (J. Madison).

The three branches were never intended to be sealed

off from one another without any possibility of interaction.

See, e.g., Nixon v. Administrator of General Services, 433

U.S. 425 (1977); Buckley v. Valeo, 424 U.S. 1 (1976). While

the Constitution permits some interdependence among the

branches, Missouri Kan. & Tenn. Ry. Co. v. May, 194

U.S. 267, 270 (1904) (Justice Holmes stated, “‘some play

must be allowed for the joints of the machine... ’’), that

cooperation cannot be so great as to threaten the inde-

pendence of the branches.

The aggregation of legislative, executive, and judicial

power in the same hands is as threatening to notions of

liberty today as it was when Madison recognized the prob-

lem:

Were the power of judging joined with the leg-

islative, the life and liberty of the subject would

be exposed to arbitrary control, for the judge

would then be the legislator.

The Federalist No. 47, at 303 (J. Madison) (emphasis in

original). Hamilton further explored that danger in The

Federalist No. 81, at 483 (A. Hamilton):

From a body which has had even a partial agency

in passing bad laws we could rarely expect a

disposition to temper and moderate them in the

application. The same spirit which had operated

in making them would be too apt to operate in

interpreting them; still less could it be expected

that men who had infringed the Constitution in

———

the character of legislators would be disposed to

repair the branch in the character of judges.

These sound principles have led to the evolution of a

“functional test’’ to determine whether the imposition of

powers traditionally associated with one branch on officials

of another branch interferes with constitutionally assigned

functions. Nixon v. Administrator of General Services, 433

U.S. at 443. In the case of the judiciary, the function of

judges is to decide cases and controveries. Art. III, §2,

U.S. Const.;'* United States v. Serpa, __ F.Supp. — ,

1988 Westlaw 71484 (D.Neb. July 12, 1988) (en banc). This

Court so stated in Flast v. Cohen, 392 U.S. 83, 94-95

(1968):

[T]he judicial power of federal courts is consti-

tutionally restricted to “‘cases’’ and ‘“‘controver-

sies’’.... Embodied in the words ‘“‘cases’’ and

“controversies’’ are two complimentary, but

somewhat different limitations. In part those

words limit the business of federal courts to ques-

tions presented in an adversary context and in

a form historically viewed as capable of resolution

through the judicial process. And in part those

words define the role assigned to the judiciary

‘* ‘Consistent with Article III the judiciary may also exercise certain

administrative powers incidental to the smooth running of the courts,

such as promulgating rules of court procedure, assigning judges to hear

cases in other districts or circuits and disciplining judges.”’ United States

v. Swapp, _— F.Supp. _— , n.5 (D.Utah July 8, 1988) (en banc). See

Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74,111

(1970) (Harlan, J. concurring) (The judiciary may exercise such powers

as are “reasonably ancillary to the primary, dispute-deciding function’

of the courts). See also In re: Certain Complaints Under Investigation,

783 F.2d 1488, 1503-1506 (11th Cir.), cert. denied, 477 U.S. 904 (1986).

Nothing in Article III allows judges to make substantive rules. Sibbach

v. Wilson & Co., 312 U.S. 1, 12-14 (1941). Judges are not permitted

to make rules on matters external to their traditional judicial function.

See Liman, The Constitutional Infirmities of the United States Sen-

tencing Commission, 96 Yale L.J. 1363, 1378 (1987).

10

in a tripartite allocation of power to assure that

the federal courts will not intrude into areas com-

mitted to the other branches of government.

The meaning of this doctrine as it applies to judges is

clear:

(The Court has held that] executive or adminis-

trative duties of a nonjudicial nature may not be

imposed on judges holding office under Article

III of the Constitution.

Morrison v. Olson, 108 S.Ct. 2597, _— (1988).

The Eleventh Circuit visitea the “‘functional test’ for

separation of powers application in a challenge to the con-

stitutionality of the President’s Commission on Organized

Crime. In Application of the President’s Commission on

Organized Crime (Subpoena of Scaduto), 763 F.2d 1191

(11th Cir. 1985), the court concluded that “(ujnder the

functional test propounded in the Nixon cases, that con-

ferral of such powers on federal judges violates the sep-

aration of powers.’”’ Scaduto held that the inclusion of

Article III judges on the President’s Commission on Or-

ganized Crime ran afoul of the separation of powers doc-

trine because it threatened the impartiality requirements

of “the federal judicial office.” The decision rested upon

the view that the separation of powers “has been con-

strued to prohibit... those arrogations of power to one

branch of Government which ‘disrupt{] the proper balance

between the coordinate branches,’ Nixon v. Administrator

of General Services, 433 U.S. at 443, or ‘prevent [one of

the branches] from accomplishing its constitutionally as-

signed functions,’ Jd. (Citing United States v. Nixon, 418

U.S. 711-12, 94 S.Ct. at 3109-10)”. 763 F.2d at 1195."

‘s The Third Circuit evinced similar concerns for the impartiality of

the judicial branch in In Matter of President's Commission on Organized

Crime (Subpoena of Scarfo), 783 F.2d 370 (3d Cir. 1986), but disagreed

ee ae EE A eM ct ee ANY a

|

|

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11

These principles, when focused on the constitutionality

of the Sentencing Commission, fzll on the side of its un-

constitutionality. The multi-functioned Commission com-

promises the independence and integrity of the judiciary,

calls into question the propriety of a congressional grant

of rulemaking authority to an independent “‘judicial’’

agency, and increases the power of the executive branch.

The unprecedented power wielded by the Commission is

precisely why its enabling legislation is unconstitutional.

The Commission, as it is constituted and operates, strikes

at the very concept of an impartial federal bench. This

fact is enough to cause the citizenry to question the in-

stitutional fairness of the criminal justice system, a con-

sequence which could wreak havoe upon its operation.

Impartiality is one of the central constitutionally or-

dained requirements of federal judicial office. Commodities

Futures Trading Comm. v. Schor, 478 U.S. 833, __ (1986);

United States v. Will, 449 U.S. 200 (1980); Scaduto, 763

F.2d at 1197. Where judges have written the rules, the

loss of neutrality must be presumed. The fears that con-

cerned the framers of the Constitution are made real by

the Commission and its work. Judges, fulfilling the man-

date of Congress, write the guidelines and revise them,

promulgate them as law, prepare interpretative materials,

and teach their use. Then, the judge-commissioners and

their colleagues apply the guidelines and sentence based

on what the judiciary has previously written. The Com-

mission’s work necessarily involves the judges in formu-

lating and recommending legislation for changes in

sentencing laws as well as all statutes relating to any part

of the criminal adjudication and corrections system. Each

of these duties requires participation in matters which will

with the Scaduto conclusion, relying in part on the distinction between

the powers conferred upon a “‘court’’ and upon a “judge.” Jd. at 376.

Scarfo held the President's Commission to be nonjudicial, and observed

that the services of the judges were voluntary and could be severed.

12

come before the judges, either as trial judges or on

appeal.'®

In the court below and in other lower tribunals, the Com-

mission and the government have supported the constitu-

tionality of the Commission in various ways. One argument

advanced by the Commission is that it was properly placed

in the judicial branch because it performs a judicial or quasi-

judicial function. That argument is unpersuasive, as the pri-

mary Commission function of setting sentences is overtly

legislative. See United States v. Wittberger, 18 U.S. (5

Wheat.) 76, 95 (1820). Even if this Court were to accept

that argument, the Commission would nevertheless violate

separation of powers by allowing non-Article III judges to

exercise that power. United States v. Swapp, ——F.Supp.

__., n.9 (D.Utah July 8, 1988) (en banc); United States v.

Bolding, 683 F.Supp. 1003, 1005 n.3 (D.Md. 1988) (en banc);

see also Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50, 58-60 (1982) (judicial power may

not be exercised by non-article III Judges).

If the Sentencing Commission is viewed as implementing

a congressional mandate by interpreting, monitoring, and

enforcing that mandate, then it would be an executive

agency. See United States v. Arnold, 678 F.Supp. 1463

(S.D.Cal. 1988). In that case, the separation of powers is

undermined because Article III judges are performing non-

judicial functions in another branch of government. United

States v. Olivencia, __ F.Supp. __, 1988 Westlaw 36487

(S.D.N.Y. April 20, 1988).

* This argument applies with equal force and validity to all members

of the judiciary. Support for this position is found in Hobson v. Hansen,

265 F.Supp. 902, 931 (D.D.C. 1967) (three judge court) (Wright, J.

dissenting): ‘“The need to preserve judicial integrity is more than just

the judges satisfying themselves that the environment in which they

work is sufficiently free of interference to enable them to administer

the law honorably and efficiently. Litigants and our citizenry in general

must also be satisfied.”’

13

A substantial number of district courts have considered

the constitutionality of the Sentencing Reform Act, and

have offered widely differing rationales for upholding or

striking down the guidelines.‘?7 NACDL, as amicus curiae,

has participated in many of those cases, and urges this

Court to review the decisions of the district courts

throughout the country. Several decisions are worthy of

special note for the clarity and depth of the legal analysis

brought to focus. The Southern District of Florida, sitting

en banc in United States v. Bogle, __. F.Supp. _—_ , 1988

Westlaw 60560 (S.D.Fla. June 15, 1988), found the Com-

mission unconstitutional on separation of powers grounds.

District Judge Marcus, writing for the twelve to four ma-

jority, found that:

The Act violates the doctrine of separation of

powers in that it has conferred unprecedented

rulemaking authority upon the judiciary that

sweeps far beyond the case and controversy re-

quirement of Article III; and it has created a

Commission combining the power of the judiciary

and the executive in such a manner as to plainly

conflict with the functions of the courts under

Article III. In the process, the Act has had the

effect of drawing the least responsive branch of

'? The following district courts are a few of the many that have ruled

that the Sentencing Reform Act or the sentencing guidelines are un-

constitutional. United States v. Kane, __-_F .Supp. ——_, 1988 Westlaw

67692 (N.D.Ga. June 28, 1988); United States v. Rosario, ___F Supp.

___., 1988 Westlaw 64343 (N.D.IIl. June 23, 1988); United States v.

Molina, ___F .Supp. —_., 1988 Westlaw 63254 (D.Conn. June 16, 1988);

United States v. Mendez, F.Supp. ——, 1988 Westlaw 62634

(S.D.N.Y. June 16, 1988) (review of decisions striking and upholding

guidelines); United States v. Terrill, ___F.Supp. —_, 1988 Westlaw

59768 (W.D.Mo. June 13, 1988); United States v. Brodie, ___F Supp.

__., 1988 Westlaw 52990 (D.D.C. May 19, 1988); United States v.

Perez, 685 F.Supp. 990 (W.D.Tex. 1988); United States v. Lopez, 684

F.Supp. 1506 (C.D.Cal. 1988) (en banc); United States v. Estrada, 680

F.Supp. 1312 (D.Mn. 1988).

14

government into an ongoing series of controver-

sial policy debates about crime and punishment.

In another district court decision, Circuit Judge Heaney,

sitting by designation, concluded in United States v. Es-

trada, 680 F.Supp. 1312 (D.Mn. 1988), that the sentencing

guidelines violated separation of powers because the guide-

lines impermissibly grant substantive legislative power to

the judiciary. Judge Heaney ruled that Congress can only

delegate to the judiciary the authority to promulgate pro-

cedural rules.'*

This Court’s most recent analysis of the separation of

powers doctrine, Morrison v. Olson, 108 S.Ct. 2597 (1988),

validates the position advanced by amicus. In upholding

the appointment of independent counsels under the 1978

_ Ethics in Government Act, this Court acknowledged that

‘Article III judges may perform functions in addition to

resolving cases and controversies, but only in exceptional

and narrowly tailored circumstances. The limitation on the

authority of Article III judges is meant to ensure judicial

independence and prevent judicial encroachment into other

governmental powers. The Court determined that the ap-

pointment by a special court division of an inferior office

to investigate and prosecute crimes committed by high

government officials was consistent with the Appointments

Clause. None of the special court’s express authority, to

define the jurisdiction of the independent counsel, to ter-

minate the appointment when the case is concluded, and

to receive the final report, compromised the limits placed

on Article III judges, since they were sufficiently analo-

gous to traditional judicial functions. The interaction be-

tween branches, moreover, did not work any judicial

* There is little doubt that the sentencing guidelines are substantive

and not procedural. As the Court observed in Miller v. F lorida, 107

S.Ct. 2446, 2543 (1987), there can be no debate that sentencing guide-

lines, as outcome determinative in individual cases, are substantive.

-

15 *

usurpation of the traditional powers of the executive

branch.

For the very reasons that Morrison upheld the inde-

pendent counsel provisions of the 1978 Ethics in Govern-

ment Act, this Court should reach the opposite conclusion

concerning the Sentencing Commission. First and foremost

is the problem which occurs when the judiciary, in addition

to making nationwide decisions of sentencing policy, also

devises the law and is then called upon to apply it. Thus,

in a single agency reposed in the judicial branch is the

power to make the law (legislative authority), execute it

(traditionally an executive function), and then apply it in

individual cases (the normal judicial role). If such a com-

prehensive multi-dimensional agency is constitutional, our

system no longer can rely on the checks and balances

which have functioned to guard against the excessive ar-

rogation of power. While the judiciary may be capable of

exercising this tremendous combination of powers, the so-

cietal concern with too much government power is too

great.

This unprecedented participation of judges in making

and executing the law brings new meaning to the term

judicial activism.'* Such extrajudicial conduct, granted by

one of the most comprehensive pieces of criminal justice

legislation in recent years, adversely affects the judicial

institution and all judges, not just the ones who serve on

the Commission. District Judge Kane recognized this as-

sault in United States v. Smith, ___ F.Supp. __., 1988

Westlaw 25223 (D.Colo. March 25, 1988):

The direct and blatant collaboration between the

judiciary and the other branches of governinent

'* Discharging tasks other than deciding cases or controversies would

“involve the judges too intimately in the process of policy and thereby

weaken confidence in the disinterestedness of the judicatory functions.’

F. Frankfurter, “Advisory Opinions,”’ in 1 Encyclopedia of the Social

Sciences 475, 478 (1930).

16

the Act creates not only serves to tarnish the

reputation of the judiciary as independent of and

completely divorced from those other arms of

government, but also in fact compromises its very

independence . . .

Amicus is of the view that this combination of powers

in one agency, located within the judicial branch, creates

the impression of judicial dependence. District Judge Mar-

cus, in the Bogle decision, held that same view:

Perhaps even more fundamental is the ap-

pearance of partiality where the judiciary be-

comes involved with setting the public policy of

crime and punishment. As we have seen, fixing

the rules of punishment for all crimes calls for

the integration of a variety of considerations, in-

cluding the public’s perception of the offense, its

‘“‘seriousness,’’ and the efficacy of deterrence, as

well as resource allocation. These are exactly the

types of controversial and changing policy deter-

minations from which the judiciary traditionally

has been removed.

The Sentencing Commission tips that careful balance which

has marked our constitutional system of government since

its very inception, and the benefit to society does not

outweigh the constitutional costs.

[In summary as to this point, the membership of Article

III judges on the Commission violates the traditional sep-

aration of powers doctrine which had its origins in the

writings attributed to Montesquieu. See Myers v. United

States, 272 U.S. 52, 116 (1926). “‘Where the whole power

of one department is exercised by the same hands which

possess the whole power of another department, the fun-

damental] principles of a free Constitution are subverted.”’

The Federalist No. 47, at 325-26 (J. Cooke ed. 1961). The

problem here was recognized by this Court in INS v.

Chadha, 462 U.S. 919, 951 (1983): ‘The hydraulic pressure

17

inherent within each of the separate branches to exceed

the outer limits of its power, even to accomplish desirable

objectives, must be resisted.’’ The sentencing guidelines,

the Sentencing Commission, and the enabling legislation

must be declared unconstitutional as offensive to the sep-

aration of powers doctrine.

B. The Presidential Removal Power Over The Sentencing

Commission Violates The Separation of Powers Doc-

trine.

Because the Sentencing Reform Act empowers the Pres-

ident to remove members of the Commission, 28 U.S.C.

§991, including those federal judges who serve for six-year

terms, the independence and neutrality traditionally as-

sociated with the judicial branch is destroyed. From a con-

stitutional point of view, this removal power compromises

the right of defendants to have their cases decided by

judges who are free from the power and influence of a

coordinate branch of government.

The determination of sentences in criminal cases tra-

ditionally has been divided between the legislature and the

judiciary.2° Congress establishes allowable sentences by

statute, usually setting a discretionary maximum sentence

or a mandatory minimum term up to a maximum. United

States v. Evans, 333 U.S. 483 (1948); United States v.

Elkin, 731 F.2d 1005, 1011 (2d Cir.), cert. denied, 469

U.S. 822 (1984).

One may be subjected to punishment for crime

in the federal courts only for the commission or

omission of an act defined by statute or by reg-

ulation having legislative authority and then only

if punishment is authorized by Congress.

United States v. Viereck, 318 U.S. 236, 241 (1943). Once

Congress has acted, it has been the judicial function to

»” See generally Dorszynski v. United States, 418 U.S. 424 (1974);

Williams v. New York, 337 U.S. 241 (1949).

18

determine the sentence applicable to a particular defendant.

The role of the branches historically was separate and

unimpeded by the executive. Judicial precedents in a va-

riety of contexts leave unquestioned that control, apparent

control, or improper influence over judicial functions by

the executive, like the merger of legislative and judicial

functions, impairs the constitutionally required neutrality

of the courts. The neutrality inherent in the judicial branch

is protected by the separation of powers doctrine.

The Sentencing Reform Act does not guarantee the re-

quired independence of the Commission, because the Com-

missioners are removable by the President, the head of

the executive branch and the chief law enforcement officer.

The significance of the executive authority was expressed

by the Supreme Court:

A lawsuit is the ultimate remedy for a breach of

the law, and it is to the President and not the

Congress, that the Constitution entrusts the re-

sponsibility to ‘take care that the law be faithfully

executed.’ Art. II, §3.

Buckley v. Valeo, 424 U.S. at 138.

In the past, the independence of agencies from improper

interference by the executive has been preserved by lim-

iting removal by the executive to removal for cause. Wei-

ner v. United States, 357 U.S. 349 (1958); Humphrey’s

Executor, 295 U.S. 602 (1935). But the Court has recog-

nized that removal for cause is insufficient to assure ad-

equate independence when the removing official is barred

from that action by the Constitution. Bowsher v. Synar,

478 U.S. at 730 (1986), held that “Congress cannot reserve

for itself the power of removal of an officer charged with

the execution of the laws except by impeachment.’’ Sim-

ilarly, the Court held that removal for cause by the ju-

diciary of an Article I judge is not adequate to protect

the independence of a court exercising Article III powers.

19

Northern Pipeline Const. Co. v. Marathon Pipe Line Co.,

458 U.S. at 61-62.

The power of the President to remove a commissioner,

functioning as a judicial officer, is unprecedented. It un-

dermines the requisite independence of the judicial agency,

and permits executive control over the Commission. Just

as Congress cannot reserve to itself the power to remove

those charged with the duty of carrying out the laws be-

cause that intrudes upon constitutional functions, Bowsher

v. Synar; Myers v. United States, 272 U.S. 52 (1926), Con-

gress cannot delegate to the executive the power to re-

move those who determine sentences.”

Congress cannot vest removal power of an independent

judicial agency in the executive. United States v. Olivencia,

___ F.Supp. —— , 1988 Westlaw 36487 (S.D.N.Y. April 20,

1988) (Sentencing Reform Act unconstitutional because ex-

ecutive branch exercises unwarranted control over judicial

agency). The words of Bowsher ring true here:

As the District Court observed, ‘When an officer

is appointed, it is only [the] authority that can

remove him, and not the authority that appointed

him, that he must fear and, in the performance

of his functions, obey,’ 626 F.Supp. at 1401.

106 S.Ct. at 3188. The Constitution does not allow the

executive to control the determination of sentences; it fol-

lows that Congress cannot give to the President control

of the Commission. As that power is central to the sta-

2: The view that ‘“‘an agency to which Congress has delegated policy-

making responsibilities may, within the limits of that delegation, prop-

erly rely upon the incumbent administration’s views of wise policy to

inform its judgments,’’ Chevron, USA, Inc., v. Natural Resources De-

fense Council, Inc., 467 U.S. 837, 865 (1984), is simply inappropriate

when the agency is determining sentences. Any argument that the

President's removal power is unlimited only strengthens the position

that the Commission's mandatory guidelines violate the separation of

powers doctrine.

20

tutory framework, the Sentencing Reform Act is uncon-

stitutional.

II. The Authority Granted To The Commission By Con-

gress To Promulgate Sentencing Guidelines Repre-

sents An Unconstitutional And Excessive Delegation.

The lower court held that the sentencing guidelines were

not promulgated pursuant to an unconstitutional delegation

of legislative power. This conclusion was in marked con-

trast to the strong dissent filed by Chief District Judge

Scott O. Wright. Amicus urges this Court to conclude that

the Sentencing Reform Act of 1984 is unconstitutional in

that it delegates excessive authority to the Sentencing

Comamiission.

Article I of the Constitution provides: ‘‘All legislative

powers ... shall be vested in the Congress of the United

States.’’ This constitutional provision embodies the non-

delegation doctrine, the notion that the ‘‘formulation of

policy is a legislature’s primary responsibility, entrusted

to it by the electorate.’’ United States v. Robel, 389 U.S.

258, 276 (1967) (Brennan, J. concurring). Inconsistent with

this constitutional restriction of law making power, the

Sentencing Commission exercises authority which can only

be characterized as legislative power. See INS v. Chadha,

462 U.S. 919, 952 (1983).

Under Article I, Sec. 7, before legislation can become

law it must have “passed the House of Representatives

and the Senate’ and ‘“‘be presented to the President of

the United States’ for signature. The district court in

United States v. Swapp, __ F.Supp. ,_ 88-Cr-006J

(D.Utah July 8, 1988), concluded “that the Guidelines

promulgated by the Sentencing Commission are unconsti-

tutional because they have not been passed by both houses

of Congress and presented to the President ...’’ ‘‘Con-

gress cannot delegate its power to enact legislation in

21

contravention of the majority passage and presentment

requirements of the Constitution.”

The nondelegation doctrine is essential to the preser-

vation of two constitutional safeguards that protect each

individual’s liberty and property: congressional accounta-

bility and judicial review. See Schoenbrod, The Delegation

Doctrine: Could the Court Give It Substance? 83 Mich. L.

Rev. 1223, 1283 (1985). Justice Harlan emphasized the

importance of these safeguards in Arizona v. California,

373 U.S. 546, 626 (1963) (Harlan, J. dissenting in part):

The {nondelegation] principle ... serves two pri-

mary functions vital to preserving the separation

of powers required by the Constitution. First, it

insures that the fundamental policy decisions in

our society will be made not by an appointed

official but by the body immediately responsible

to the people. Second, it prevents judicial review

from becoming merely an exercise at large by

providing the courts with some measure against

which to judge the official action that has been

challenged.

(emphasis in original; footnote omitted). Congress alone

exercises “(t]he essentials of the legislative function,

[which] are the determination of legislative policy and its

formulation and promulgation as a defined and binding rule

of conduct.’ Yakus v. United States, 321 U.S. 414, 424

(1944).

The roots of the nondelegation doctrine are found in

the separation of powers doctrine, which serve to guar-

antee that each coordinate branch will perform its con-

stitutionally assigned function and no other. See Synar v.

United States, 626 F.Supp. 1374, 1383 (D.D.C.), affd sub

nom, Bowsher v. Synar, 478 U.S. 714 (1986). With the

Sentencing Reform Act’s assignment to the judicial branch

the power to create sentences, implement sentences, and

judicially review those sentences, the Sentencing Commis-

22

sion has become a sort of super-agency, transcending the

limitations imposed on the individual branches.

The delegation of legislative power to the Commission

is so excessive that nothing the Commission does can be

seen as merely following a carefully drafted congressional

mandate. This itself renders the Sentencing Reform Act

unconstitutional. See A.L.A. Schecter Poultry Corp. v.

United States, 295 U.S. 495 (1935); Panama Refining Co.

v. Ryan, 293 U.S. 388, 421-430 (1935). Congressional del-

egation of legislative or even quasi-legislative power is

proper only if Congress “shall lay down by legislative Act

an intelligible principle to which the person or body au-

thorized to [exercise the delegated power] is directed to

conform ...” J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409 (1928).

Congress here has failed to set out a “framework of

the policy which [it] has sufficiently defined.’ National

Cable Television, Inc. v. United States, 415 U.S. 336, 342

(1974). Clear enunciation of policy enables the agency ex-

ecuting the delegated power, and a reviewing court, to

determine whether the power has been properly exercised

and is within the scope of the delegation. Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579 (1952); Yakus vy.

United States, 321 U.S. at 425 (1944).

Congress has not provided the framework for the Sent-

encing Commission’s exercise of its delegated power. In

United States v. Brodie, __ F.Supp. ___ , 1988 Westlaw

52990 (D.D.C. May 19, 1988), the court declared the Sen-

tencing Reform Act unconstitutional on the grounds that

‘... the present Act would probably fail to pass muster,

for Congress has given to the Sentencing Commission a

mandate of such vagueness that it constitutes no real di-

rection at all.’ In reaching this conclusion, the court relied

upon Whalen v. United States, 445 U.S. 684, 689 (1980)

(“the power to define criminal offenses and to prescribe

the punishment ... resides wholly with the Congress.”’.

23

Brodie also pointed to Justice Brennan’s concurrence in

United States v. Robel, 389 U.S. 258, 276 (1967), stating,

in the criminal law context, that the “‘[f]ormulation of pol-

icy is a legislature’s primary responsibility, entrusted to it

by the electorate, and to the extent Congress delegates

authority under indefinite standards, this policy making

function is passed on to other agencies, often not an-

swerable or responsive in the same degree to the people.”

(footnote omitted).

United States v. Brittman, __ F.Supp. — . 1988 West-

law 54178 (E.D.Ark. May 27, 1988), provided instructive

guidance on the delegation issue. ‘‘Congress delegated its

authority in a core legislative field, an area affecting the

most fundamental of constitutional rights.’’ The court noted

that ‘“‘delegated powers that, as in this case, affect liberty

interests must be construed narrowly,” relying on Kent v.

Dulles, 347 U.S. 116, 129 (1958).

Litigants in the criminal justice system have a right to

expect that the Congress, after its required factual inves-

tigation, policy development, and study, will promulgate

the laws. Congress has the obligation to perform its re-

quired duty. The delegation of unbridled legislative power

to the Commission represents a shirking of congressional

responsiblity and deprives citizens of the protections of

the nondelegation doctrine. Congress cannot abandon its

duties for reasons of political expedience. Nor can the

judicial branch assume new duties because of a congres-

sional desire to avoid extended debate and political com-

plaint. The District Court in United States v. Williams,

___F.Supp. __. , 1988 Westlaw 63614 (M.D.Tenn. June

23, 1988) (en banc), addressed these concerns in striking

down the Sentencing Reform Act on excessive delegation

grounds:

Finally, we observe that the Framers of the

Constitution, in allocating all legislative powers

to Congress, expected Congress, as a body of

24

elected representatives, to assume primary re-

sponsibility for the formulation of policy. This is

true particularly in areas that impinge on per-

sonal liberties. Judging by its work product, the

Commission made literally thousands of policy

choices in formulating the guidelines... These

choices profoundly influence every citizen’s lib-

erty... In our view, the fixing of criminal pen-

alties requires a legislative policy determination

and direct Congressional action. The determina-

tion of the comparative societal egregiousness of

one crime as opposed to another would seem to

be one of the most important functions commit-

ted to the legislative branch. Congressional del-

egation of this function to the Commission

disrupts the proper balance between the coor-

dinate branches and permits the Congress to

evade its constitutional assigned role as chief pol-

icy maker.

In summary as to this point, Congress has written a

Statute which fails to define the parameters as to the

selection of sentencing options. The “intelligible princi-

ples” required for valid delegation of authority are notably

lacking here. Since a judge’s decision making is channelled

through the Commission’s guidelines, and because Con-

gress has not adequately instructed the Commission, it is

evident that the Commission—not the sentencing court—

is the body which sets the choice of sentence. This delib-

erate congressional omission leaves the delegation of au-

thority to the Commission constitutionally deficient.

III. The Provisions Of The Sentencing Reform Act That

Abolish Parole And Limit The Availability Of Good

Time Cannot Be Severed From The Sentencing

Guidelines. .

Once the Court determines that the guideline portion of

the Sentencing Reform Act is unconstitutional, the re-

25

maining question is whether other portions of the Act are

severable. The principal aspects of severability which are

relevant to this case are the abolition of parole and the

substantial reduction in the rate of statutory and other

forms of prison good time.”

The Sentencing Reform Act, as a comprehensive sen-

tencing law, establishes determinate federal sentencing.

The Sentencing Commission, and the guidelines issued by

it, are the central feature of this reform, without which

the remaining portions of the Sentencing Reform Act

would be fragmented and would lead to results contrary

to the overall legislative purposes. It is the position of

amicus that Congress would not have enacted these lesser

pieces of the package without the guidelines. This Court

should not sever these other revisions of federal sentencing

practices from the fate of the guidelines.”

As the Court stated in Alaska Airlines, Inc. v. Brock,

107 S.Ct. 1476, 1480 (1987):

The standard for determining the severability of

an unconstitutional provision is well established:

“Unless it is evident that the legislature would

not have enacted those provisions which are

within its power, independently of that which is

not, the invalid part may be dropped if what is

left is fully operative as a law.’’ Buckley v. Valeo,

424 U.S. 1, 108 (1976), quoting Champlin Refin-

* In addition to these features of severability, other important issues

should be addressed by the Court. For example, if the district courts

are to return to a system of pre-guideline sentencing, shouldn’t the

former provisions of Rule 35(b), F.R.Cr.P. be available to a defendant?

See United States v. Molina, ___ F.Supp. ___ , 1988 Westlaw 63254

(D.Conn. June 16, 1988) (Rule 35 retained upon a finding that the

guidelines are unconstitutional).

* Under the pre-guideline system, it was the Parole Commission—

rather than thy sentencing court—which established the actual release

date of a cor» ed offender. See, e.g., United States v. Grayson, 438

U.S. 41, 48 (1978).

26

ing Co. v. Corporation Commission of Oklahoma,

286 U.S. 210, 234 (1932).

The “relevant inquiry in evaluating severability is whether

the statute will function in a manner consistent with the

intent of Congress.’’ Jd. at 1481 (emphasis in original).

‘Whether an unconstitutional provision is severable from

the remainder of the statute in which it appears is largely

a question of legislative intent...’’ Regan v. Time, Inc.,

468 U.S. 641, 653 (1984). Both the statute and its leg-

islative history made clear that the abolition of parole and

the new good time rules apply only to sentences that are

imposed under a system of guideline sentencing. See 18

U.S.C. §§3551, 3558, 3624.

Congress intended that the guidelines, including the ab-

olition of parole the new good time rules, operate as a

package. For that reason, Congress delayed implementa-

tion of the parole and good time changes until the guide-

lines became effective. Congress createa this package to

insure that “the sentencing guidelines system will not re-

place the current law provisions rela.ing to the imposition

of sentence, the determination of a prison release date,

and the calculation of good time allowances’ until the

guidelines ‘‘replace the existing sentencing system.’ Re-

port at 188-89; 1984 U.S. Code Cong. & Admin. News at

3372-3373.

The Senate Report shows that the guidelines were the

cornerstone of the determinate sentencing system—which

Congress passively endorsed in its entirety—but not in its

component parts. The “comprehensive plan’ for deter-

minate sentencing is accomplished only through the inter-

relationship of three major reforms: mandatory sentencing

guidelines; abolition of parole; and substantial reduction of

* In assessing congressional intent, one must first look to the lan-

guage and structure of the statute. Consumer Product Safety Commis-

ston v. G.T.E. Sylvania Inc., 447 U.S. 102, 108 (1980).

27

existing good time. The combination of these elements of

sentencing reform carry out the policy goals sought to be

furthered by a system of guidelines sentencing. None of

these elements of sentencing reform function independ-

ently.

Fundamental fairness mandates a return to the entire

pre-existing scheme upon a finding that the guidelines are

unconstitutional. In a supplemental order issued in United

States v. Bogle, __ F.Supp. __ , Case No. 87-856-Cr-Mar-

cus (S.D.Fla. June 30, 1988) (en banc), the court found on

the issue of severability that defendants sentenced for post-

November 1, 1987 offense conduct are eligible for parole

if not otherwise precluded by statute. E.g., United States

v. Allen, 685 F.Supp. 827 (N.D.Ala. 1988) (en banc) (old

law applies upon conclusion that guidelines unconstitu-

tional). One of the laudable goals of the Sentencing Reform

Act was consistency and uniformity. These goals will be

compromised by a determination of severability. In order

to reduce unwarranted disparity in sentencing, convicted

defendants must also be able to avail themselves of the

former provisions of Rule 35(b) to serve as a check on

disparate sentences.

In summary as to this point, once the Court determines

that the guidelines are unconstitutional, the Court must

find all the other associated provisions of the Sentencing

Reform Act incapable of severance and strike them ac-

cordingly.

28

CONCLUSION

Amicus asks this Court to declare the sentencing guide-

lines and the Sentencing Reform Act of 1984 unconsti-

tutional.

Respectfully submitted,

NinA_J. GINSBERG, Esq. BENSON B. WEINTRAUB

DENNIS N. BALSKE, Esq. BENEDICT P. KUEHNE

Co-Chairs, Amicus Committee Counsel of Record

National Association of SONNETT SALE & KUEHNE, P.A.

Criminal Defense Lawyers Atico Financial Center, #500

200 Southeast First Street

Miami, Florida 33131

(305) 358-2000

Counsel for National

Association of Criminal

Defense Lawyers

July 28, 1988