US v. Bolding

• Decision Date: 14 April 1988
• Docket Number: Crim. No. JFM-87-0540.
• Citation: 683 F. Supp. 1003
• Parties: UNITED STATES of America v. Ellis Edwin BOLDING.
• Court: U.S. District Court — District of Maryland

683 F. Supp. 1003

UNITED STATES of America v. Ellis Edwin BOLDING.

Crim. No. JFM-87-0540.

United States District Court, D. Maryland.

April 14, 1988.

Roann Nichols, Asst. U.S. Atty., Baltimore, Md., for plaintiff.

M. Brooke Murdock, Asst. Federal Public Defender, Baltimore, Md., for defendant.

Before HARVEY, Chief Judge, MURRAY, RAMSEY, HARGROVE, SMALKIN, HOWARD, BLACK and MOTZ, District Judges, and NORTHROP, KAUFMAN, THOMSEN, MALETZ and YOUNG, Senior District Judges.

OPINION

Defendant, Ellis Edwin Bolding, has pled guilty to a criminal information charging him with having escaped from federal custody from November 1, 1987 through November 20, 1987. Because Bolding's offense was committed after November 1, 1987, the sentencing guidelines promulgated by the United States Sentencing Commission under the Sentencing Reform Act of 1984 are here applicable. Bolding has filed a motion seeking to have the Sentencing Reform Act declared unconstitutional. The issues have been fully briefed, and on April 1, 1988, oral argument was held before six of the Judges of this Court.

We find the Act to be unconstitutional. In light of the plethora of opinions which have been written on the subject, we dispense with a statement of the background of the Act and a summation of the parties' arguments.

The constitutional infirmities which we perceive in the Act are simple and straightforward. They stem from our understanding of the respective roles of the legislative and judicial branches in the sentencing process and from what we believe to be the fundamental meaning of due process.¹ We start from the premise that Congress has the power to mandate minimum as well as maximum sentences of definite duration and amount, subject only to the proportionality requirement of the Eighth Amendment. In setting such sentences the members of Congress are, as the elected representatives of the people, themselves accepting responsibility for the deprivation of liberty which their action entails.² However, when Congress does not set definite sentences but rather a range of potential sentences, it has created a sphere of discretionary power which is inherently judicial in nature. The Sentencing Reform Act and the mandatory guidelines promulgated thereunder so narrowly restrict the exercise of the courts' discretion that they effectively negate it.³See Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977); United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1871); cf. United States v. Brainer, 691 F.2d 691, 697 (4th Cir.1982). Thus, the effect of the Act and the guidelines is to violate the separation of powers doctrine by transferring judicial power from the federal courts, whose independence of judgment is constitutionally secured, to the Sentencing Commission, whose fealty to Congress and the President is statutorily prescribed.

Of related and equal concern to this institutional infirmity is a broader problem of due process — a concern for the fair treatment of each defendant. We do not hold that the Constitution guarantees to a defendant (at least in non-capital cases) "individualized sentencing." However, when a definite sentence is not statutorily mandated, a defendant being deprived of his liberty pursuant to a statute which sets a sentencing range is constitutionally entitled to an articulated exercise of discretion by the judge before whom he appears rather than to the mechanical application of formulae adopted by non-constitutional commissioners invisible to him and to the general public. The essence of due process is accountability, reason and a fair opportunity to be heard. These cannot be replaced by any administrative code, however extensively considered or precisely drawn.⁴

Because we find that the Sentencing Reform Act impermissibly places in the Sentencing Commission discretionary power entrusted by the Constitution to the federal judiciary, we need not decide the other constitutional issues raised by defendant.⁵ We note, however, that we are not persuaded that the statutory mandate that three judges sit on the Commission so adversely impacts upon judicial resources that it impairs the courts from fulfilling their constitutional function. See generally Nixon v. Administrator of General Services, supra, at 443, 97 S.Ct. at 2790 (1977). On the other hand, although undoubtedly there are benefits flowing from the service of judges on the Commission, we have substantial concern that if the guidelines are upheld as mandatory limits on the courts' discretion, the participation of the commissioner/judges in what is, in effect, the enactment of legislation may violate the separation of powers doctrine. See generally J.W. Hampton, Jr. & Co., supra, at 406, 48 S.Ct. at 351; The Federalist No. 47, at 324 (J. Madison) (J. Cooke ed. 1961).⁶

A separate order is being entered herewith declaring the Sentencing Reform Act of 1984 unconstitutional. In accordance with this ruling, Bolding will be sentenced under pre-existing law. However, we have concluded that we will, out of respect for a Congressional enactment of such magnitude, generally follow the practice of sentencing defendants committing offenses on or after November 1, 1987 under the 1984 Act until the constitutionality of the Act has been finally decided.

1 The Department of Justice claims a role for the executive branch in the sentencing process and urges that the Commission should be placed within that branch. Of course, the Parole Commission is an executive agency whose constitutional status has been upheld. See, e.g., Geraghty v. United States Parole Commission, 719 F.2d 1199 (3d Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 133 (1984). However, the conceptual basis for the Parole Commission's authority lies in the executive branch's power to execute judgments and its power to pardon. See, e.g., Joost v. United States Parole Commission, 535 F.Supp. 71, 74 (D.Kan.1982); United States v. Fryer, 402 F.Supp. 831, 834 (N.D.Ohio 1975), aff'd, 545 F.2d 11 (6th Cir.1976); U.S. Const. art. II, § 2. The Department has suggested no theory under which the executive branch has any proper role in the establishment of statutory penalties or the ...