US v. Swapp

• Decision Date: 18 July 1988
• Docket Number: No. 88-CR-006J.,88-CR-006J.
• Citation: 695 F. Supp. 1140
• Parties: UNITED STATES of America, Plaintiff, v. Addam W. SWAPP, Vickie L. Singer, Jonathan R. Swapp, John Timothy Singer, Defendants.
• Court: U.S. District Court — District of Utah

695 F. Supp. 1140

UNITED STATES of America, Plaintiff, v. Addam W. SWAPP, Vickie L. Singer, Jonathan R. Swapp, John Timothy Singer, Defendants.

No. 88-CR-006J.

United States District Court, D. Utah C.D.

July 18, 1988.

Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for plaintiff.

Grant W.P. Morrison, Salt Lake City, Utah, for defendant Addam W. Swapp.

Kathryn Collard, Salt Lake City, Utah, for defendant Vickie L. Singer.

J. Bruce Savage, Jr., Park City, Utah, for defendant Jonathan R. Swapp.

G. Fred Metos, Salt Lake City, Utah, for defendant and movant John Timothy Singer.

Donald A. Purdy, Jr. (John R. Steer with him on the brief), Washington, D.C., for amicus curiae U.S. Sentencing Com'n.

Jerome H. Mooney (Benson B. Weintraub with him on the brief), Salt Lake City, Utah, for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Before JENKINS, C.J., WINDER, GREENE¹ and SAM, JJ., and ANDERSON, Senior District Judge.

MEMORANDUM OPINION

JENKINS, Chief Judge:

The court, sitting en banc, holds that the Sentencing Reform Act of 1984, which establishes the mechanism by which the new Sentencing Guidelines applicable in this case were promulgated, is unconstitutional because it violates the separation and allocation of governmental powers mandated by the United States Constitution, because it constitutes an unlawful delegation of legislative authority and because it violates the procedural requirements of article I of the Constitution. The court will therefore not apply the guidelines in cases now pending before it.

I.

The Sentencing Reform Act of 1984, Pub.L. No. 98-473, title II, §§ 211-39, 98 Stat.1987, was enacted as part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat.1837, to remedy the inequities perceived by some persons allegedly resulting from the claimed disparate sentences given convicted criminals in federal court. The act creates the United States Sentencing Commission and designates it "an independent commission in the judicial branch of the United States." 28 U.S.C. § 991(a). The commission consists of seven voting members and one nonvoting member (the Attorney General or his designee). The President appoints the seven voting members with the advice and consent of the Senate.² Three of the seven members must be federal judges, selected from a list of six judges recommended by the Judicial Conference of the United States. Id. § 991(a). The federal judges on the commission are not required to resign from the bench, but all commissioners serve full-time for the first six years, and the chairman of the commission serves full-time thereafter. Id. § 992(c). Commissioners may be reappointed to a second, six-year term. See id. § 992(b).

Members of the commission are "subject to removal ... by the President only for neglect of duty or malfeasance in office or for other good cause shown." Id. § 991(a).

The stated purpose of the commission is to "establish sentencing policies and practices for the Federal criminal justice system" and to "develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing," id. § 991(b), which are set forth in 18 U.S.C. § 3553(a)(2).³

The commission is charged with the responsibility of promulgating guidelines "for use of a sentencing court in determining the sentence to be imposed in a criminal case." 28 U.S.C. § 994(a). The guidelines are to establish a sentencing range "for each category of offense involving each category of defendant." Id. § 994(b)(1). The statute sets out factors for the Sentencing Commission to consider in establishing categories of offenses and categories of defendants, id. § 994(c) & (d), as well as factors the commission is not to consider, id. § 994(d), (e) & (k). In fulfilling its duties, the commission is instructed to consult with authorities on various aspects of the federal criminal justice system. Id. § 994(o).

Under the Sentencing Reform Act, for all federal crimes committed after November 1, 1987, courts are required to impose sentences within the range established by the guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b) as amended by Sentencing Act of 1987, Pub.L. No. 100-182, § 3, 101 Stat. 1266, 1266.

A defendant may appeal his sentence if it is greater than the sentence specified in the applicable guideline, and the government may appeal a defendant's sentence if it is less than the sentence specified in the guideline. Id. § 3742.

If a defendant wants the guidelines modified in his case based on "changed circumstances unrelated to the defendant," the Sentencing Commission must approve his petition. 28 U.S.C. § 994(s).

II.

This court is not the first to address the constitutionality of the Sentencing Reform Act. The issue has been hotly debated ever since the sentencing guidelines went into effect on November 1, 1987, and will continue to be debated until the Supreme Court decides the issue, hopefully in the fall.⁴ By our tally, over fifty decisions have been rendered to date, with the cases running more than two to one against the constitutionality of the act. Thus, we are not writing on a clean slate. Nevertheless, we shall "indulge the conceit that something we may say might figure in the ultimate outcome." United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988).

We start with the proposition that questions of constitutionality do not turn on the court's idea of what constitutes prudent public policy. The most foolish statute in the world may still be constitutional. It is not for this court or any court to second-guess the wisdom of the policy decisions of Congress or to read the court's own values into the Constitution so as to foreclose experimental solutions put forth by the legislature to difficult social problems.

"By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government...." INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 2780, 77 L.Ed. 2d 317 (1983). The only check on the legislative judgment (outside of the political process) is the Constitution. The legislature may not ignore constitutional limitations on its powers. If it does so, the court must vindicate the constitutional provision.

Perhaps the most important check on governmental power the Constitution provides is the separation of governmental powers into three branches, "the better to secure liberty," in Justice Jackson's famous phrase. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

Implicit in the fracturing of power into three great divisions is a recognition that the nature of the power exercised by each branch is different in make-up and purpose from the power exercised by other branches. The powers of each branch are peculiar to the function of that branch. Ordinarily, except for matters of money or structure, legislative power is concerned with matters of general application, matters of general policy of an embracive nature. Individual disputes of a fact-intensive nature involving specific persons or entities are ordinarily not the subject of legislative action. The legislature is peculiarly unfit as an institution to handle such fact-intensive matters concerned with the peculiarities of time, place and context.

Judicial power, on the other hand, may be applied only to the decision of cases and controversies. U.S. Const. art. III, § 2.⁵ The judiciary is peculiarly adept at dealing with fact-intensive controversies involving real disputes and rendering judgments dictated by the law and the facts. Although its decisions have precedential value, the judiciary is less adept at making policy decisions of general, prospective application.

Legislative power and judicial power are ordinarily applied at differing levels of abstraction, with the legislative power dealing with the general and the judicial power dealing with the concrete and fact specific. Congress is not well equipped to render individualized judgments in cases and controversies, nor should it be expected to do so. Such has traditionally been the function of the judicial branch. And the judicial branch should no more legislate than legislators should judge cases and controversies.

The court recognizes that

the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power ..., it also contemplates that practice will integrate the dispersed powers into a workable government.

Youngstown Sheet & Tube Co., 343 U.S. at 635, 72 S.Ct. at 870 (Jackson, J., concurring). As Justice Holmes stated, "Some play must be allowed for the joints of the machine...." Missouri, Kan. & Tenn. Ry. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 638, 48 L.Ed. 971 (1904).

At the same time, "the hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." INS v. Chadha, 462 U.S. at 961, 103 S.Ct. at 2789. As nearly as possible, each branch of government must "confine itself to its assigned responsibility." Id.

III.

With these principles in mind,⁶ we turn our attention to the Sentencing Reform Act.

Criminal sentencing has never been entrusted to a single branch of government, by the text of the Constitution, its structure or its history....