US v. Alves

• Citation: 688 F. Supp. 70
• Decision Date: 03 May 1988
• Docket Number: 87-341-MA.,Crim. A. No. 88-11-MA
• Parties: UNITED STATES of America v. Maurice F. ALVES. UNITED STATES of America v. Paul W. LADD.
• Court: U.S. District Court — District of Massachusetts

688 F. Supp. 70

UNITED STATES of America v. Maurice F. ALVES.

UNITED STATES of America v. Paul W. LADD.

Crim. A. Nos. 88-11-MA, 87-341-MA.

United States District Court, D. Massachusetts.

May 3, 1988.

Robert Richman, Federal Defender's Office, Boston, Mass., for Alves.

Martin F. Murphy, Boston, Mass., for U.S.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

The defendants in the above captioned cases have filed essentially similar motions to declare the Sentencing Reform Act, 28 U.S.C. § 991 et seq. unconstitutional, and the sentencing guidelines promulgated under it invalid and inapplicable to their cases. The defendant, Alves, was charged with five counts of bank robbery, each allegedly occurring after November 1, 1987. If convicted, Alves will be subject to the sentencing guidelines. The defendant, Ladd, was convicted after jury trial of one count of receiving counterfeit United States notes, also occurring after November 1, 1987. He was sentenced subject to sentencing guidelines on April 21, 1988.

The defendants have filed memoranda supporting their motions. The government has filed an opposing memorandum and the United States Sentencing Commission, noting its differences with the government on the issue of its validity under separation of powers principles, has filed a brief as amicus curiae. Because the positions of the defendants are essentially the same in both cases, I address both motions in this single memorandum.¹

I.

The defendants' arguments that the SRA is unconstitutional can be summarized concisely. First, they argue that the separation of powers doctrine is violated because Congress has impermissibly expanded the judicial function by assigning to the judiciary the non-judicial function of establishing sweeping and binding sentencing guidelines applicable to all federal criminal defendants. Secondly, membership of Article III judges on the Commission violates the separation of powers doctrine in three ways: it threatens the independence and impartiality of the judiciary by the service on a full time agency charged with policy making responsibilities, thus creating a permanent working relationship between the executive and judiciary; it subjects each judge on the Commission to recusal; and its inclusion of Article III judges on the Commission puts a judicial imprimatur of approval on the guidelines. Thirdly, the separation of powers doctrine is violated because the President's power to appoint and remove Commission members renders the judiciary subservient to the executive. Fourthly, the SRA is the result of an unconstitutional delegation of powers because it assigns the legislative responsibility to determine appropriate penalties for federal crimes to an agency located within the judicial branch. Lastly, the mechanical sentencing procedure of the SRA violates due process because it restricts the right of the judge to individualize sentences and deprives the defendant of the right to present facts and influence the judge's assessment of an appropriate sentence.

In opposition, the government takes the position that although Congress established the Commission as an independent agency in the judicial branch, the Commission has all the attributes of an executive agency, exercising executive functions. Thus, the government concedes that if the Commission is located within the judicial branch, "potentially serious constitutional problems would be raised, namely an apparent violation of Article III and separation of powers principles." However, the Commission and the guidelines are salvageable, the government submits, if the Court ignores the incorrect and inoperative label that Congress has attached to the Commission and simply views it as an executive agency to which Congress could unquestionably delegate the power to establish sentencing guidelines under intelligible principles. With the offensive label severed from the statute, the defendants will have no complaint.² Alternatively, the government argues that the Commission should be viewed as an independent agency within the executive branch, like the Federal Trade Commission or the Securities and Exchange Commission, and, thus, should be considered a constitutionally established agency.

In its amicus brief, the Sentencing Commission concedes nothing. It argues that Congress validly delegated the specialized function of devising sentencing guidelines to the independent Sentencing Commission within the judicial branch. The service of Article III judges as voluntary, non-adjudicative commissioners does not impair or threaten judicial independence, the Commission argues. Nor does the President's removal power impair the duty of the judiciary in carrying out its constitutional duty of deciding cases and controversies. In its parting effort, the amicus acknowledges the position of the government that were this Court to conclude the Commission could not be located constitutionally within the judicial branch, the guidelines could be saved if the Commission were viewed as an independent agency that is outside the judicial branch for separation of powers purposes and inside the judicial branch for those statutory and administrative purposes ancillary to the judicial function. Thus bifurcated, the SRA would not be constitutionally objectionable.

These same issues, in various forms, have been presented in ever growing numbers to the district courts with divided results. Although I am adding to the growing number of opinions, it is not my intention to rehash positions which have been carefully and thoughtfully explored by other judges on both sides. Indeed, I am in substantial agreement with the conclusions reached by Judge William Enright in United States v. Ruiz-Villaneuva, 680 F.Supp. 1411 (S.D.Cal.1988) and Judge Adrian Duplantier in United States v. Chambless, 680 F.Supp. 793 (E.D.La.1988). I write to focus again on the matters raised in these motions and to press an analysis of the separation of powers issue in terms of the challenge presented, namely, the power of Congress to address comprehensively the growing and intractable problem of unfair disparity in sentencing with legislation compatible with constitutional principles.

That analysis must start with an understanding of the background of the SRA and, more particularly, the Sentencing Commission — its purpose, its composition, its operation and its product. Finally, the impact on the three branches, and specifically, the impact on the most affected branch — the judiciary — must be evaluated.

II.

On October 12, 1984, the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 1837, 2017, was enacted into law. A portion of that Act, the Sentencing Reform Act of 1984 (codified at 28 U.S.C. §§ 991-98) (hereinafter the "SRA"), was the culmination of years of legislative efforts to reform the federal criminal sentencing system. Since it established sentencing institutes in 1958, 28 U.S.C. § 334(a), Congress has attempted to eliminate disparity in sentencing and promote a more fair and just order of criminal punishment. Prior to the promulgation of the guidelines, the authority to define criminal conduct and determine the range of punishment for that conduct vested solely in Congress, but the ultimate sentence to be imposed was left to the discretion of the sentencing judge. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). The sentence imposed, however, was subject to later modification by release on parole. The parole commission, established within the executive branch, could establish the release date and, thereby, the length of the sentence. Thus, all three branches participated in the process which produced unwarranted disparity and uncertainty. Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083-84, 93 L.Ed. 1337 (1949), reh. denied, 337 U.S. 961, 69 S.Ct. 1529, 93 L.Ed. 1760 (1949), reh. denied, 338 U.S. 841, 70 S.Ct. 34, 94 L.Ed. 514 (1949); United States v. Addonizio, 442 U.S. 178, 188-189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979).

In enacting the SRA, Congress provided clear direction. Its intention was to limit the discretion of judges by requiring the imposition of determinate sentences within guideline ranges. Congress sought to promote the dual purpose of uniformity and fairness, and still carry out the recognized purposes of sentences, namely punishment, deterrence, public protection and rehabilitation. Finally, sentences were subjected to appellate review under certain circumstances.

The key provision in the SRA was the establishment of the United States Sentencing Commission as "an independent commission in the judicial branch of the United States...." 28 U.S.C. § 991(a). Its membership consisted of seven voting members, three of whom were to be Article III judges selected from a panel of six nominated by the Judicial Conference. The members are chosen by the President, subject to confirmation by the Senate, for service of a six year term. They are removable by the President for neglect of duty, malfeasance in office or for other good cause shown. The primary function of the Sentencing Commission was to designate sentencing guidelines. Congress directed the Commission to follow the purposes and policies set out by Congress, particularly the elimination of unwarranted sentencing disparity and the establishment of fairness and certainty in sentencing. 28 U.S.C. § 991(b)(1)(B), 28 U.S.C. § 994(a) through (n). The Commission has the continuing responsibility to review guidelines regularly and submit amendments to Congress which would take effect within 180 days unless Congress otherwise provides. Finally, the Commission was given research, reporting and training functions, functions it was to carry out in cooperation with the Federal Judicial Center and the Administrative Office of the United States Courts.

The responsibility for the composition of the Commission was shared by the three branches of government. Its...