US v. Mendez, No. 88 Cr. 78 (MBM).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation691 F. Supp. 656
Docket NumberNo. 88 Cr. 78 (MBM).
PartiesUNITED STATES of America, Plaintiff, v. Lydia MENDEZ, Defendant.
Decision Date16 June 1988

691 F. Supp. 656

UNITED STATES of America, Plaintiff,
v.
Lydia MENDEZ, Defendant.

No. 88 Cr. 78 (MBM).

United States District Court, S.D. New York.

June 16, 1988.


691 F. Supp. 657

Martin Klotz, Asst. U.S. Atty., New York City, for plaintiff.

Ruth Chamberlin, The Legal Aid Society, Federal Defender's Services Unit, New York City, for defendant.

OPINION AND ORDER

MUKASEY, District Judge.

Lydia Mendez, guilty on her own plea of escaping in December 1987 from a community treatment center where she was serving a sentence for narcotics-related offenses, in violation of 18 U.S.C. § 751(a), challenges the validity of the Sentencing Guidelines which, by statute, govern all conduct in violation of federal criminal law occurring on or after November 1, 1987. She is not alone, nor am I. At least 140 district judges have been asked in over 100 cases to pass on the validity of the guidelines. Of these, at least 87 judges have found the guidelines unconstitutional; the remainder have upheld them.

As set forth succinctly in United States v. Olivencia, 689 F.Supp. 1319 (S.D.N.Y. 1988) (Leisure, J.), these holdings vary not only in result but also in reasoning. Thus the guidelines have been found inherently to deny due process by denying to a defendant the right to challenge the significance of facts relating to his crime or his

691 F. Supp. 658
background, to violate the principle of separation of powers, and to constitute an overly broad delegation of legislative power to prescribe punishment. Olivencia, supra, at 3-6; see also, United States v. Brodie, 686 F.Supp. 941 (D.D.C.1988) (invalidating the guidelines on all three grounds)

Conversely, as reported by Judge Leisure in Olivencia, supra, at 6-8, the guidelines have been upheld as the result of a proper exercise of an executive function United States v. Chambless, 680 F.Supp. 793 (E.D.La.1988), and as the product of a judicial function, United States v. Ruiz-Villeneuva, 680 F.Supp. 4 (S.D.Cal. 1988). The Justice Department ("DOJ") asks that they be upheld on the former ground, the Guidelines Commission (the "Commission") on the latter. A survey of the results thus far calls to mind nothing so strongly as the band of blind men describing the elephant variously as a wall, a tree or a rope, depending on which part of the beast they touched.

Notwithstanding the diversity of the results, there has been remarkable unanimity in these opinions that the sooner the propriety of the guidelines is settled at the appellate level, the better. Compare Olivencia, supra, 2-3 (guidelines held unconstitutional), with, United States v. Lopez, 684 F.Supp. 1506, 1519-20, (C.D.Cal.1988) (en banc) (voting to uphold guidelines). In apparent accord with that view, the Supreme Court on June 13, 1988 took the extraordinary step of directing a writ of certiorari to the United States Court of Appeals for the Eighth Circuit in United States v. Mistretta, before the Eighth Circuit had conducted intermediate appellate review, the case to be heard at the Court's next term. See, United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988), cert. granted sub nom. United States v. Mistretta, ___ U.S. ___, 108 S.Ct. 2818, 100 L.Ed.2d 920.

Thus, numerous judges have already explored the issues raised by the guidelines and many more may do so by the time their validity is ultimately determined by the Supreme Court. Therefore, there is even less reason in this case than in most others engaging issues that can be settled only by appellate courts, for a trial judge to indulge the conceit that something he may say might figure in the ultimate outcome. Nonetheless, it is of the essence of this office not simply to reach a result but to explain and justify it. See, Brown v. Allen, 344 U.S. 443, 496-97, 73 S.Ct. 397, 440-41, 97 L.Ed. 469 (1953) (separate opinion of Frankfurter, J.); Nemmers v. United States, 795 F.2d 628, 634-35 (7th Cir. 1986). Hence this opinion.

I.

A. History and Background

The Sentencing Reform Act of 1984 (the "Act") was passed as Chapter II of the Comprehensive Crime Control Act of 1984, but has a history very much its own.

"In the early days of the Republic * * * the period of incarceration was generally prescribed with specificity by the legislature." United States v. Grayson, 438 U.S. 41, 45, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978), but this system generated criticism of "excessive rigidity" in sentencing. Id. at 45, 98 S.Ct. at 2613 (citation omitted). Accordingly, fixed sentences were abandoned in favor of permitting the sentencing judge "to consider aggravating and mitigating circumstances surrounding an offense, and, on that basis, to select a sentence within a range defined by the legislature." Id. at 45-46, 98 S.Ct. at 2613 (emphasis in original).

The modern view as of the late Nineteenth Century was that trained correctional specialists should be permitted "to set the release date of prisoners according to informed judgments concerning their potential for, or actual, rehabilitation and their likely recidivism." Id. In 1910, Congress established the United States Parole Board to "administer the parole system as a part of the program to rehabilitate federal prisoners and restore them to useful membership in society." Hyser v. Reed, 318 F.2d 225, 233 (D.C.Cir.1963) (en banc). The result was indeterminate sentences set

691 F. Supp. 659
by judges, with the release date set by the Parole Board, reflecting the "modern as of 1949 philosophy of penology that the punishment should fit the offender and not merely the crime." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)

However, the perception then arose that the discretion of judges to impose any sentence within statutory limits, a discretion "generally not subject to review," United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), coupled with the Parole Board's discretion to set the release date, led to unwarranted disparities in sentences. In 1958, Congress authorized advisory judicial sentencing institutes to promote "uniformity in sentencing procedures," 28 U.S.C. § 334(a), and to reduce "widespread disparities in the sentences imposed by Federal courts." H.R. Rep. No. 1946, 85th Cong., 2d Sess. 6 (1958). Although the Parole Board on its own, and its successor the Parole Commission at the urging of Congress, later adopted guidelines to establish customary ranges of confinement for various classes of offenders, the essential pattern remained: indeterminate sentences imposed by district judges and actual release dates set by the Parole Commission. See, United States v. Grayson, supra, 438 U.S. at 47-48, 98 S.Ct. at 2614; United States Parole Comm'n v. Geraghty, 445 U.S. 388, 391, 100 S.Ct. 1202, 1206, 63 L.Ed.2d 479 (1980). That pattern was based on the assumption that, "reformation and rehabilitation of offenders ... are important goals of criminal jurisprudence." Williams v. New York, supra, 337 U.S. at 248, 69 S.Ct. at 1084. The impression persisted, however, that rehabilitation was a myth, and that unjustifiable sentencing disparity undermined public confidence in the government's ability to deal with crime.1 Critics, including a former judge of this Court who professed to find his own and his colleagues' sentencing powers "terrifying," M. Frankel, Criminal Sentences 5 (1973), held out the promise that the intractable difficulties inherent in sentencing, which necessarily involves an attempt to reduce people and their behavior to numbers, would yield to enough effort by the right people applying modern techniques and technologies — a promise "so characteristic of the modern age." United States v. DiBiase, 687 F.Supp. 38, 39-40 (D.Conn. 1988) (Cabranes, J.).

The result was the Sentencing Reform Act. As Judge Ellsworth A. Van Graafeiland of the United States Court of Appeals for the Second Circuit has said, "although only thirty-seven years have passed since those words from Williams v. New York, supra, relating to the importance of rehabilitation were written, we are now instructed that the beliefs they espoused are, to use a well-worn legal phrase, clearly erroneous. The principal aims of sentencing now are said to be retribution, deterrence, incapacitation and uniformity." Van Graafeiland, Some Thoughts on the Sentencing Reform Act of 1984, 31 Vill.L.Rev. 1291-92 (1986).

B. The Sentencing Commission

The Act creates a Sentencing Commission "as an independent commission in the judicial branch of the United States."2 28

691 F. Supp. 660
U.S.C. § 991(a). Of the Commission's seven voting members, "at least three ... shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Id. All voting members are appointed by the President with the advice and consent of the Senate and all are "subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown." Id. The Attorney General sits ex officio as a nonvoting member of the commission. Id.

C. The Commission's Charge Under The Act

The Act charges the Commission with creating guidelines that reflect several considerations, some contradictory, and that promote several goals of sentencing. Thus, the guidelines are to promote punishment, deterrence, isolation of dangerous persons, and rehabilitation; they are to "provide certainty and fairness" while "avoiding unwarranted sentencing disparities"; they are to "reflect ... advancement in knowledge of human behavior as it relates to the criminal justice process." 28 U.S.C. § 991(b)(1)(A)-(C). Those desiderata are set forth in the section containing the "purposes" of the Commission.

The Commission's "duties" are contained in a separate section of 24 sub-paragraphs, of which at least 16, many themselves further subdivided, address the substantive content of the guidelines and general policy statements...

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17 practice notes
  • US v. Brown, Crim. No. 88-00010-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 26, 1988
    ...satisfied). 5 For a nice review of the history and modern view of sentencing and incarceration, see United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988). Judge Michael B. Mukasey describes the evolution of indeterminate sentences from determinate sentences in the early days of the Republ......
  • US v. Weidner, No. SCr. 88-15.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 11, 1988
    ...United States v. Horton, 685 F.Supp. 1479 (D.Minn.1988); United States v. Kane, 691 F.Supp. 341 (N.D.Ga.1988); United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y 1988); United States v. Molina, 688 F.Supp. 819 (D.Conn.1988) (en banc); United States v. Olivencia, 688 F.Supp. 1483 (S.D.N.Y.198......
  • US v. Alafriz, No. S 88 Cr. 0002 (RWS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 6, 1988
    ...98 Stat. 1837, 2017. 5 United States v. Lopez, 684 F.Supp. 1506 (C.D. Cal.1988) (en banc). 6 Compare, e.g., United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988) (Westlaw, Allfeds) (guidelines unconstitutional), United States v. Olivencia, supra, (same); United States v. Brodie, 686 F.Sup......
  • U.S. v. Mondello, No. 90-50121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1991
    ...921, 924 n. 7 (9th Cir. Jan. 30, 1991); see also United States v. West, 898 F.2d 1493, 1503 (11th Cir.1990); United States v. Mendez, 691 F.Supp. 656, 663-64 (S.D.N.Y.1988); United States v. Amesquita-Padilla, 691 F.Supp. 277, 289 (W.D.Wash.1988); United States v. Chambless, 680 F.Supp. 793......
  • Request a trial to view additional results
17 cases
  • US v. Brown, Crim. No. 88-00010-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 26, 1988
    ...satisfied). 5 For a nice review of the history and modern view of sentencing and incarceration, see United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988). Judge Michael B. Mukasey describes the evolution of indeterminate sentences from determinate sentences in the early days of the Republ......
  • US v. Weidner, No. SCr. 88-15.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 11, 1988
    ...United States v. Horton, 685 F.Supp. 1479 (D.Minn.1988); United States v. Kane, 691 F.Supp. 341 (N.D.Ga.1988); United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y 1988); United States v. Molina, 688 F.Supp. 819 (D.Conn.1988) (en banc); United States v. Olivencia, 688 F.Supp. 1483 (S.D.N.Y.198......
  • US v. Alafriz, No. S 88 Cr. 0002 (RWS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 6, 1988
    ...98 Stat. 1837, 2017. 5 United States v. Lopez, 684 F.Supp. 1506 (C.D. Cal.1988) (en banc). 6 Compare, e.g., United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988) (Westlaw, Allfeds) (guidelines unconstitutional), United States v. Olivencia, supra, (same); United States v. Brodie, 686 F.Sup......
  • U.S. v. Mondello, No. 90-50121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1991
    ...921, 924 n. 7 (9th Cir. Jan. 30, 1991); see also United States v. West, 898 F.2d 1493, 1503 (11th Cir.1990); United States v. Mendez, 691 F.Supp. 656, 663-64 (S.D.N.Y.1988); United States v. Amesquita-Padilla, 691 F.Supp. 277, 289 (W.D.Wash.1988); United States v. Chambless, 680 F.Supp. 793......
  • Request a trial to view additional results

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