U.S. v. Detwiler, CR 03-372-PA.

• Decision Date: 05 October 2004
• Docket Number: No. CR 03-372-PA.,CR 03-372-PA.
• Parties: UNITED STATES of America, v. Richard DETWILER, Defendant.
• Court: U.S. District Court — District of Oregon

338 F.Supp.2d 1166

UNITED STATES of America, v. Richard DETWILER, Defendant.

No. CR 03-372-PA.

United States District Court, D. Oregon.

October 5, 2004.

COPYRIGHT MATERIAL OMITTED

Karin Immergut, United States Attorney, Gregory Nyhus, Assistant United States Attorney, Portland, OR, for the United States.

Ellen C. Pitcher, Thomas J. Hester, Federal Public Defender's Office, Portland, OR, for Defendant Richard Detwiler.

OPINION AND ORDER

PANNER, District Judge.

Pending before the court is Defendant's motion to declare the Feeney Amendment unconstitutional and to impose sentence under the pre-Feeney version of the federal Sentencing Guidelines. That motion is granted in part. I hold that:

1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.

2. The defects are not severable.

3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.

Discussion

The failings of the federal Sentencing Guidelines (the "Guidelines") have been well documented by others. See, e.g., United States v. Green, ___ F.Supp.2d ___, 2004 WL 1381101 (D.Mass.2004).

If the only flaw in the Guidelines was that they represent poor public policy, and have never worked as advertised, I would be duty-bound to continue applying the Guidelines, as I have done for many years. A law is not unconstitutional simply because it may be unwise.¹

However, Defendant contends that recent Congressional actions render the federal Sentencing Guidelines system, or parts thereof, unconstitutional. I begin with Defendant's contentions regarding the separation of powers doctrine.

A. Mistretta's Treatment of the Separation of Powers Issue

"[W]ithin our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty." Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). In arguing for ratification of the Constitution, James Madison referred to separation of powers as "the sacred maxim of free government." THE FEDERALIST No. 47, p. 308 (C. Rossiter ed.1961). "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many... may justly be pronounced the very definition of tyranny." Id. at 301.

Consequently, "our Constitution mandates that `each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others.'" Mistretta, 488 U.S. at 380, 109 S.Ct. 647 (quoting Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)). However, "[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Mistretta, 488 U.S. at 381, 109 S.Ct. 647 (citation omitted). Consequently, the Supreme Court has focused upon ensuring adequate checks and balances, and that each Branch jealously guards its own powers and resists encroachment by the others.

"[T]he greatest security," wrote Madison, "against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others." Id. at 381-82, 109 S.Ct. 647 (quoting THE FEDERALIST No. 51).

It is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence.... [W]e have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch. For example, just as the Framers recognized the particular danger of the Legislative Branch's accreting to itself judicial or executive power, so too have we invalidated attempts by Congress to exercise the responsibilities of other Branches or to reassign powers vested by the Constitution in either the Judicial Branch or the Executive Branch * * * * By the same token, we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment.

Id. at 382-83, 109 S.Ct. 647 (citations omitted).

In affirming the constitutionality of the Sentencing Guidelines concept — at least in the abstract — Mistretta overruled two objections: first, that Congress had delegated excessive legislative discretion to the Sentencing Commission, and second, that Congress had violated the separation of powers doctrine by supposedly allowing the Judicial Branch to exercise executive and legislative powers, and also by authorizing federal judges to serve as members of the Sentencing Commission. Id. at 412, 109 S.Ct. 647.

Mistretta did not consider whether the federal Sentencing Guidelines system, in its present form, violates the separation of powers doctrine by aggrandizing the Executive Branch at the expense of the Judicial Branch. In many respects, this is the opposite of the contention advanced in Mistretta. That this court is even giving serious consideration to such a challenge, a mere 15 years after that decision, illustrates just how far the federal Sentencing Guidelines system today has strayed from the theoretical concept approved in Mistretta.

Central to the decision in Mistretta was the premise that the Sentencing Commission was a part of the Judicial Branch, performing tasks consistent with the historic role of that branch:

Prior to the passage of the Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. It was the everyday business of judges, taken collectively, to evaluate and weigh the various aims of sentencing and to apply those aims to the individual cases that came before them. The Sentencing Commission does no more than this, albeit basically through the methodology of sentencing guidelines, rather than entirely individualized sentencing determinations. Accordingly, in placing the Commission in the Judicial Branch, Congress cannot be said to have aggrandized the authority of that Branch or to have deprived the Executive Branch of a power it once possessed.

Id. at 395, 109 S.Ct. 647.

Indeed, the Court noted, "[i]n the field of sentencing, the Executive Branch never has exercised the kind of authority that Congress has vested in the Commission." Id. at 387 n. 14, 109 S.Ct. 647. In a footnote, the Court then observed that:

[H]ad Congress decided to confer responsibility for promulgating sentencing guidelines on the Executive Branch, we might face the constitutional questions whether Congress unconstitutionally had assigned judicial responsibilities to the Executive or unconstitutionally had united the power to prosecute and the power to sentence within one Branch. Ronald L. Gainer, Acting Deputy Assistant Attorney General, Department of Justice, testified before the Senate to this very effect: "If guidelines were to be promulgated by an agency outside the judicial branch, it might be viewed as an encroachment on a judicial function...."

Id. at 391 n. 17, 109 S.Ct. 647 (citation omitted).

Recent developments, including enactment of the "Feeney Amendment," Pub.L. No. 108-21, § 401 (2003), require this court to confront the questions posed in footnote 17 of Mistretta.

B. Enactment of the Feeney Amendment

Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.² As introduced, the Feeney Amendment would have eliminated the sentencing court's ability to depart downward, unless a departure was requested by the prosecutor or else appeared on a short list of expressly authorized departures. H.R. REP. No. 48 (March 25, 2003). Such a rule would defeat the principal purpose of downward departures, which is to address unique circumstances not already covered by the Guidelines. See Koon v. United States, 518 U.S. 81, 92-93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

The Feeney Amendment also (1) directly revised various Guidelines, an unprecedented action for Congress³; (2) altered the standard for appellate review of departures, thereby abrogating much of the holding in Koon; (3) gave prosecutors the power to deny defendants the third point for acceptance of responsibility; (4) gave prosecutors the power to establish fast-track programs offering defendants a lower sentence, provided the defendant quickly pleads guilty and waives all rights, including the right to obtain discovery, suppress unlawful seizures, and to seek relief for ineffective assistance of counsel; and (5) made other significant revisions to the Guidelines scheme.

In addition, under the guise of "improved data collection," the Feeney Amendment requires that the House and Senate Judiciary Committees, and the Attorney General, be notified each time a judge departs downward, unless that departure was requested by the prosecutor. In particular, the report must include the "identity of the sentencing judge." H.R. REP. No. 48, supra.

The Feeney Amendment was abruptly added, on the floor of the House, to the "PROTECT Act," an unrelated but popular bill to fund an "Amber Alert" system. No advance notice was given, no hearings were held, and there was no opportunity for meaningful debate or to refute the arguments (and allegedly, misinformation) that were cited as justification for the Amendment.⁴ Although the Feeney Amendment directly impacted the Sentencing Commission, that body was not informed of the Amendment in advance, let alone consulted. Cohen & Fields...