Mistretta v. United States – Oral Argument – October 05, 1988

Media for Mistretta v. United States

Audio Transcription for Opinion Announcement – January 18, 1989 in Mistretta v. United States

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Alan B. Morrison:

Now, of that 10 months, the sentencing commission said five had to be spent in actual confinement… no straight probation, actual confinement.

Yes.

Paul M. Bator:

The only difference is that they were doing it one by one.

Alan B. Morrison:

And five could have been served in community confinement, which means a person can go out during the day and goes to a halfway house or similar facility in the evening.

I believe that judges shouldn’t do it.

Paul M. Bator:

That is, there is a sense in which the courts, the individual judges, were making sentencing guidelines for 150 years, because Congress provided no standards.

Alan B. Morrison:

In actuality, the District Judge in this case gave Mr. Deaver three years jail time, but suspended it entirely.

As I said, the sentence imposed–

Paul M. Bator:

And the only difference is that they did it each one for himself, each one for herself.

Alan B. Morrison:

Under the sentencing guidelines, he could not have done that.

I know, you said you think it’s un-Constitutional for them to do it.

But that’s not a guideline at all.

Alan B. Morrison:

Now, again, the question is not which set of judgments is right or wrong, the sentencing commission’s judgments or the District Court’s judgments.

–Yes, I would have to say that.

I mean, I could depart from it tomorrow.

Alan B. Morrison:

The point for these purposes is to recognize that the judgment depends about your notions about this relative seriousness of the crime.

I wish you hadn’t said that.

Even the same judge could go over to a different methodology the next case, couldn’t He?

Alan B. Morrison:

What kind of offenses should people in all cases have to go to jail for?

We don’t really have to get into that.

Paul M. Bator:

The judge has unfettered lawmaking discretion.

Alan B. Morrison:

And this commission has made those judgments in every one of the cases in which it has written a sentencing guideline for.

We certainly do not, your Honor, but–

Well, would you call… I don’t call that lawmaking, to decide a particular case, that this defendant will get 15 years.

You take the position that no commission, regardless of its composition, could have been given that power, I take it?

It’s quite a bit different being a member of an agency that promulgates law, which is what you say is the problem here–

I don’t call that making a law.

Alan B. Morrison:

That is the second argument we make.

–Correct.

I call making a law, all defendants that have this characteristic will get 15 years.

Alan B. Morrison:

We make the argument on delegation as our second argument, given the definitions and the relatively few limits that Congress has placed upon the commission.

–From testifying before Congress.

That’s a law.

And if we disagree with you on that, then you fall back on the fact that it’s the composition of the commission?

We really have to reach that problem today?

But saying that this defendant will get 15 years… that’s not a law at all.

Alan B. Morrison:

Well, as your Honor notes, those are alternative arguments.

We do not have to reach that problem, your Honor, but I was asked the question and I do have to answer, I believe.

That’s the decision of a case.

Alan B. Morrison:

We have placed the sentencing… let me see, the separation of powers argument first in our brief because we believe it is a lesser argument… that is to say, we don’t have to say that necessarily you could never issue sentencing guidelines, but that this commission with this composition, these powers and these restrictions couldn’t do it.

[Laughter]

Paul M. Bator:

Your Honor, I believe substantively they were making the law in deciding what ought to be the severity of punishment.

Well, would it make a difference if the law did not require that judges serve on the commission?

Alan B. Morrison:

The effort to treat the judges here as acting in their individual capacity falters both on the facts of this statute… that is, that Congress insisted that three Article III judges be on board.

Well, I think we’re using law in two different senses.

Alan B. Morrison:

It would make a difference depending upon whether judges were serving on the commission or not.

They insisted that they sit down and meet with four other non-Article III judges, and that they engage in a process that could fairly be called horsetrading, to come up with a ranking of offenses and appropriate levels of offenses involving some of the most political judgments that we have to make.

You’re not using it in the relevant sense here, it seems to me.

Well, what if the President under a law that didn’t specify that judges would have to serve… and what if the President in fact asked some to serve, and they said, “All right, we will”.

Alan B. Morrison:

And it seems to me that it doesn’t matter whether this function was assigned to a court… if it had been assigned to this Court, without the non-judicial members, surely the outcome of the case would not have been any different.

Paul M. Bator:

They were doing it case by case… of course I acknowledge that.

Alan B. Morrison:

In my view, that is un-Constitutional as well.

If your Honors had descended from the bench, taken off your robes, gone into a conference room instead of a courtroom, and decided the case in your individual capacities, decided in your individual capacities to issue these sentencing guidelines.

Paul M. Bator:

But the distinction between case by case adjudication and general rulemaking is at its weakest where the Congress provides no general standards, and the courts have to… even it implicitly… create the standards as well as to make the particular application point.

Alan B. Morrison:

That is not permissible, to have Article 3 judges serving on commission of this kind.

Surely the outcome can’t be depended upon whether you’re wearing robes, whether you’re called “commissioner” or “your Honor”.

Well, suppose that Congress told the courts, that Congress created a commission with judges on it, judges only, to promulgate rules for damages in libel cases.

Even as true volunteers, when it isn’t mandated?

Alan B. Morrison:

The Constitution deals with the reality that Federal judges who are appointed for life must maintain their neutrality and their impartiality and because this sentencing commission system fundamentally alters that balance, it is un-Constitutional.

Now, really, Professor, the whole justification for our making law at all… and we do all the time… is because we must do so in order to decide a case.

Alan B. Morrison:

I think that… yes, that is also correct, your Honor, because of the nature of the kind of choices that the commission was making.

Thank you, your Honors.

And that’s not what the sentencing guidelines are.

Alan B. Morrison:

The thrust of my submission that I have been making here in trying to describe the work of the commission is directly relevant on both the separation of powers issues… because the Court has looked at the functions being performed… as well as the delegation issue, and that factual predicate in this description directly bears on both of them, and not simply on the delegation issue, or on the separation of powers issue.

I’ll reserve the rest of my time.

Paul M. Bator:

Your Honor, our position would be that if Congress created an independent agency and said judges ought to be participating in it, and the purpose of the agency is to rationalize and clean up a system of incredible discrepancies in, for instance, the allocation of punitive damages… we think that ought to be Constitutional.

Well, what about Owen Roberts on the Pearl Harbor Commission, Earl Warren on the Warren Commission?

William H. Rehnquist:

Thank you, Mr. Morrison.

Paul M. Bator:

Now, sentencing seems to me an even easier case though, because of the very special role that judges nave historically played in the creation of law and policy with respect to sentences.

Alan B. Morrison:

I believe that all… that many… that those two are factually distinguishable on the grounds that they involved advice-giving and fact-finding.

William H. Rehnquist:

We’ll now hear from you, General Fried.

Paul M. Bator:

But that is within the general ambit of our argument, your Honor, and would a distinguish both of those cases from what we were talking about… the anti-trust guidelines.

Alan B. Morrison:

But the… both the Government and the sentencing commission cite a number of historic examples about other kinds of activities undertaken by various justices at various times.

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court, for more than 30 years, Congress has been troubled and has worked at the problem of grave, invidious, and inexplicable disparities in the Federal sentencing process.

Paul M. Bator:

There is a jurisprudential difference between sentencing guidelines and anti-trust guidelines.

Alan B. Morrison:

While I think there are some distinctions between that case and this one, principally because this one involves the making of law in a concrete situation… the most important distinction for our purposes is that in none of those examples was the Constitutionality of the conduct ever taken to court, let alone was it reviewed under this Court’s jurisprudence on separation of powers as it has evolved since Buckley in 1976.

Charles Fried:

In 1958, it tried some gentle measures.

Paul M. Bator:

Sentencing guidelines do not tell the citizens, “This is now illegal”.

Do you think that practice amounts to nothing in determining Constitutionality?

Charles Fried:

It put in the judicial councils and institutes to which I believe Justice O’Connor made reference.

Paul M. Bator:

No sentencing guideline makes illegal or actionable anything that had been done before.

Alan B. Morrison:

I did not say that, your Honor.

Charles Fried:

That did no good at all.

Paul M. Bator:

Of course it has an impact on liberties, but it is not jurisprudentially a substantive rule, and that’s an important distinction.

Alan B. Morrison:

I would not agree that practice amounts to nothing.

Charles Fried:

In 1976, they did something a little bit more drastic: we had the Parole Commission Act, which sought to give the parole commission power to even out the sometimes quite dreadful disparities after the fact, and the Court will be familiar with that from the Adinizio case.

Paul M. Bator:

I have one more point, your Honors, and that’s a separation of powers point.

Alan B. Morrison:

I would point out, however, that there has been practice to the contrary.

Charles Fried:

That, too, failed, and it failed because the judges and the parole commission were working at cross purposes, and the sentencing judges would anticipate the work of the parole commission in pronouncing sentence.

Paul M. Bator:

And it’s also a very important practical point.

Alan B. Morrison:

A number of Justices expressed extreme reservations about doing this, and while not directly citing separations of powers situations in all cases… although Justice Stone has done so… I would say that dating from the earliest days of our Republic, when as reported in United States v. Muskrat, President Washington asked Thomas Jefferson as Secretary of State to ask the Court for an opinion about the meaning of a treaty.

Charles Fried:

So, strong measures were required to obtain equality and honesty in sentencing.

Paul M. Bator:

Overall, globally viewed, the Sentencing Reform Act significantly reduces, rather than expands, the overall power of the judicial branch to make law with respect to sentencing.

Alan B. Morrison:

Those… the Justices declined to do so on the grounds that it was inappropriate.

Charles Fried:

Now, I think that this statute is misunderstood when it is viewed as being unduly rigid.

Paul M. Bator:

Before the Act, the judicial branch exercised a plenary discretion to make sentencing law.

Alan B. Morrison:

I would suspect that it they had been asked in their individual capacities, as the respondent suggests, as opposed to their official capacity, the outcome should have teen the same.

Charles Fried:

It provides for 25 percent range in which the sentencing judge may operate.

Paul M. Bator:

This Act significantly narrows and makes accountable that power.

Alan B. Morrison:

So, I think that the history is by no means unified all in one direction, but more importantly, I believe that none of the cases ever involved activities of a concrete, far-reaching nature that affects 40,000 criminal defendants a year, as the activities of the sentencing commission do here.

Charles Fried:

That should be enough… and allows for departures in a rather wide range of circumstances, provided that the judge gives reasons and explains what he’s doing.

Paul M. Bator:

The doctrine of separation of powers is supposed to have something to do with liberty, and it would be a huge irony if this Court invalidated a statute whose global effect is not to increase but sharply to curtail the prerogatives of one of the branches of Government.

Well, as long as we’re giving you these examples, what about the Federal rules of evidence?

Charles Fried:

Now, Petitioner raises three objections.

Paul M. Bator:

Your Honor, I have not had time to deal with a question of the specific service at judges, and I will leave that issue to the briefs, and also to the arguments made by the Solicitor-General.

Suppose that this Court had promulgated the Federal rules of evidence.

Charles Fried:

He objects that Congress did not do the whole job here, but rather delegated it to an expert independent agency, and then Petitioner complains as to how that agency is constituted, and most particularly about the inclusion of three Federal judges among the seven members.

Paul M. Bator:

I want to add one footnote, if I have time.

Would that have been Constitutional?

Charles Fried:

Turning to the delegation point… because it’s a good way to indicate what the commission actually did do… one would have thought, given the very great particularity in the statute, that it would be too late in the day to raise a delegation objection.

Paul M. Bator:

In his reply brief, Mr. Morrison makes, I think, an important concession.

Alan B. Morrison:

Well, let me divide the answer into two parts, If I may.

Charles Fried:

In fact, the statute sets not only the goals for the commission, but provides the methodology and makes many of the particular judgments, and as was remarked from the bench, of course, all of this takes place within the maxima which are set out by the particular criminal statues, and which are the basis for the kind of grading of severity to which Mr. Morrison referred.

Paul M. Bator:

He says it would be Constitutional to have a commission in the judicial branch with judges dealing with issues of parole and reduction of good time.

Alan B. Morrison:

As to the rules not relating to privilege, I would say that there would be no difficulty, that those are very close to the rules of civil procedure.

Charles Fried:

Turning to the methodology because it’s most important; the statue required the commission to begin with actual experience.

Paul M. Bator:

I think that’s a fatal concession for him, both at a superficial and at a deep level; at a superficial level, because I don’t understand the distinction, at a Constitutional level, between the commission that deals with parole and the commission that deals with the things this commission did.

Alan B. Morrison:

That is, of course, the line that Congress ultimately hit upon.

Charles Fried:

And, indeed, the commission surveyed 40,000 cases, 10,000 of them in very great detail, to see what the sentences actually served under actual circumstances involving the circumstances of the case, the circumstances of the offender… what they were.

Paul M. Bator:

At a deeper level, I think, the concession shows that sentencing cannot be cabined into the tidy table of organization that Petitioner prefers.

Alan B. Morrison:

This Court did, in the early 1970’s, pursuant to a Congressional grant, promulgate the rules of evidence, sent them forward to Congress.

Charles Fried:

And not only did the commission start with actual experience, to a large extent that’s where it ended.

Paul M. Bator:

Sentencing has always been a special feature of our jurisprudence.

Alan B. Morrison:

Congress saw them, stopped them from going into effect, and ultimately said,

Charles Fried:

To a large extent, these guidelines reflect today’s practice.

Paul M. Bator:

It’s always been a field in which responsibility has been shared among the branches.

Alan B. Morrison:

“You can’t put them into effect as to privileges.”

Charles Fried:

Where the commission departed in these value judgments about which you’ve heard, they have done so under the explicit mandate of the Act, that for instance, violent offenders, repeat offenders, career criminals, drug traffickers, be sentenced at or near the maximum.

Limits on sentencing… the limits or what an individual judge could do in imposing a sentence, has always been the prerogative of the Congress, hasn’t it?

Alan B. Morrison:

Now, dealing with the privileges, I would even divide that into two parts.

Charles Fried:

That is not something the commission dreamed up… they were enjoined to do that by the statute.

Paul M. Bator:

Has always been the prerogative of–

Alan B. Morrison:

It seems to me that it we are dealing with the privileges as applies to Federal law and Federal causes of action involving Federal matters, that the Court may have some limited authority there.

Charles Fried:

Similarly, as to white collar criminals–

The prerogative of the Congress.

Alan B. Morrison:

But what I believe you have, in the case of privileges, are principally questions of value judgments.

But the problem is, they’ve been enjoined to do it for every case.

The pronouncement of the sentence has always been for the judge, to be sure, but the limits within which the judge is permitted to operate in imposing the sentence has until now been with the Congress, has it not?

Alan B. Morrison:

Do we value the confidence between the husband and wife greater than we value the getting at truth?

Charles Fried:

–What I was suggesting, Justice White, is that the commission was enjoined to do it by the statute, and therefore they were not simply following their own policy judgement.

Paul M. Bator:

–The Congress, of course, has plenary Constitutional authority to determine what the punishment should be.

Alan B. Morrison:

How do we value the attorney-client privilege… not so much in the context of litigation, but in terms of pre-litigation matters?

Charles Fried:

That they were being guided by what Congress had required, and the guidance from Congress here, I submit, was miles greater than we usually encounter in a delegation.

I’m just asking whether up until now it is not true that the limits within which each individual judge had to maneuver in imposing a sentence has been up to the Congress.

Alan B. Morrison:

And it is my view that that is a far closer question… and I think if I had to come down on it, I would say that the Court could not do these… at least certainly many of the privileges.

You’re making a non-delegation argument, is that it right not?

And the effect of this legislation is to place those limits within this commission.

And is the historical occurrence that Congress old enact the privileges support for your position?

Charles Fried:

I am, your Honor.

Paul M. Bator:

No, your Honor, I don’t think so.

Alan B. Morrison:

Well, I would like to say yes, your honor, but I think that it probably had to do more with a recognition of the underlying nature of the controversies in the privilege area… that is, we are dealing with policy choices that are more substantive in nature than procedural.

Charles Fried:

And the suggestion that this is something that Congress might have handed to an advisory panel, then to enact its work, misses the point that these guidelines, in order to be sensible and effective, must be evolutionary.

Paul M. Bator:

Before this statute, Congress in the substantive criminal statute legislated the maximum, and the individual judge had plenary discretion on where to sentence within that maximum.

Alan B. Morrison:

I recognize that in recent years the Court has said… I mean, just last term… that there is no single dividing line between substance and procedure.

Charles Fried:

They must require monitoring of what happens and constant revision, and that of course is precisely the kind of work which is given to an independent agency.

Paul M. Bator:

Exactly that same constraint operated on the commission.

Alan B. Morrison:

But, on the other hand, the Court has recognized in a number of cases when persons have tried to claim something as procedural to be able to drag it in on the judicial side, the Court has said,

General Fried, do you know of any other agency… let’s say this is in the executive branch… do you know of any other agency in the executive branch that has no function whatever except to promulgate law?

Paul M. Bator:

The maximums created by statute continue to bind the commission, and the commission and the judge then operating with the guidelines together are exercising not more authority but less authority than before the sentencing guidelines, because Congress added an awful lot of other, specific, narrowing to the situation.

Alan B. Morrison:

“No, we won’t allow that to take place.”

Charles Fried:

No, I do not, but I do know of a number of agencies which among their other functions do promulgate–

The commission has established new, lower, maximums… has establishing new, lower maximum sentences for certain offenses.

Alan B. Morrison:

So, I think that the efforts to expand procedural have… albeit in a different context… have generally not met with favor, and I would think that they would not apply here to the evidence context as well.

Indeed, just as rulemaking is almost a necessary incident of being an executive.

Paul M. Bator:

I’m not sure I understand your Honor’s question.

Alan B. Morrison:

Turning back to the work of the commission, the commission also had to deal with the question of fines within the statutory restrictions.

You must acknowledge… this is a distinctive entity.

Paul M. Bator:

But the commission operated as individual judges.

Alan B. Morrison:

The commission was given the discretion to decide under what circumstances fines should be imposed, when and how much.

Has there ever teen an agency of the Government that has no function except to promulgate law, other than the Congress?

Some offenses which the statute says can be sentenced to 30 years, some of those the commission has said, given certain circumstances, the maximum can only be 20.

Alan B. Morrison:

Originally the commission thought about having an ability-to-pay fine system, or is the alternative, a system based on a multiplier of the amount of money lost.

Charles Fried:

–Well, I ran through that in my own mind, and I was not able to discover one.

Isn’t that right?

Alan B. Morrison:

The commission is even now about to hold some hearings dealing with fines for organizations, principally corporate defendants.

I don’t think so.

Paul M. Bator:

That’s true, yes, sir.

Alan B. Morrison:

But, in the end, as to individuals, it’s set up a schedule under which all but the incident must pay fines in an amount within the range set forth in the schedule.

Charles Fried:

But I do think there are agencies which establish laws for others as well as for themselves, and laws which are enforced by others other than themselves.

Paul M. Bator:

That’s exactly what the District Judge did before.

Alan B. Morrison:

So, turning back again to the Michael Deaver example, at the base level offense of 12, Mr. Deaver could have been required to pay a fine of between $3,000 and $30,000.

In the course of conducting some administrative function or other… some other executive function.

Paul M. Bator:

The District Judge could say, for this offenses, I will never sentence anybody for more than 20 years.

Alan B. Morrison:

In fact, he was fined a $100,000, and again, the answer… the question is, of course, not which set of fines is correct, but it shows how value-laden that part of the system is as well.

Charles Fried:

Well, I think the SEC, when it sets down rules, is making rules for others, and for the enforcement by others, as much as for themselves.

But he couldn’t say that another District Judge couldn’t sentence to 30 years.

Is this argument to say that the commission is treading on judicial, the power of individual judges?

That’s true, but I assume that if Congress could do this, Congress could decide that we need a massive revision of securities laws, and could simply compose a commission, so long as the directives are general enough to overcome the bare objections we have against overdelegation… assuming that there’s enough standard there, it could just create a commission and say that whatever this commission comes out with shall be our new securities laws.

He could say that he couldn’t, or that he wouldn’t.

Alan B. Morrison:

It is certainly the fact that the commission treads on the power of individual judges.

Can it do that?

William H. Rehnquist:

Thank you, Mr. Bator.

But individual judges have always been deciding what the sentence should be within the statutory range.

Charles Fried:

Well, in this case, of course, the regulations, the rules, have to lie before Congress for six months before becoming effective.

William H. Rehnquist:

Mr. Morrison, you have three minutes remaining.

Alan B. Morrison:

In the context of a case or controversy, your Honor.

Charles Fried:

I cannot propose any general objection to what you suggest.

Alan B. Morrison:

Thank you, your Honor.

Yes, and in that process, they have certainly been making their own value judgments about the seriousness of the crime.

Well, it certainly is a nice… it’s a handy way to get around legislative impasse.

Alan B. Morrison:

Let me turn first to the point that Mr. Bator made regarding the question of whether these kinds of Parole and probation functions could be taken care if in the judicial branch, although they’re now in the executive branch.

But they have done it for the one individual before the Court.

You just create an agency to make law, right?

Alan B. Morrison:

I thought that our reply brief was clear, but if it’s not, I’ll make it clear now.

That’s true.

Charles Fried:

Well, I don’t think that we have here a way of getting around a legislative impasse which might be what was a problem in the Gramm-Rudman situation… because here Congress had come down to a lot of very specific policy judgments, but there has the need to bring them that last six feet down to earth.

Alan B. Morrison:

We weren’t talking about what judges could do, but I don’t think it would matter.

They have not laid down precedent.

Charles Fried:

But they’d done an awful lot of the work themselves.

Alan B. Morrison:

I think the important points is that in those particular circumstances, they would be acting as individual adjudicators, much as the parole commission now adjudicates when a person, or determines when a person is entitled to parole.

Alan B. Morrison:

And the fact that they were doing it for only the individual before the Court was the very fault that the Congress found with the present system, and the reason that they wanted to change it.

But if this handy device is doable, why has it never been done before?

Alan B. Morrison:

We said nothing about judges laying down rules to apply to probation any more than judges now do.

Congress didn’t like the individual–

I mean, it certainly is handy.

Alan B. Morrison:

Second, I want to be clear that although Bator says that you have to show actual prejudice to find a violation of separation of powers, last year in this Court’s decision in Morrison v. Olson, when discussion the question of whether the independent counsel, the judges could close down the office of the independent counsel in the event the work of the independent counsel was done, the Court did not look to find actual prejudice.

Well, what’s wrong with… put your finger on what’s wrong with the commission doing it.

Charles Fried:

Well, I can’t answer why–

Alan B. Morrison:

It said that

–The commission is improperly doing it here because we have a commission which includes three Article 3 judges in the judicial branches.

To just simply say, why go through all the trouble of hammering cut a new securities law?

Alan B. Morrison:

“we will construe the statute narrowly, lest it be considered that the special court could engage in administrative-type activity.”

I know, but they aren’t… the judges aren’t doing… the commission, including the judges on the commission, aren’t doing things that judges don’t do, or that are improper for judges to do.

Let’s just create an agency and say, hey, promulgate a securities law.

Alan B. Morrison:

No showing of actual prejudice to any branch of the Government… a prophylactic rule of the kind that we’re asking for here.

Your argument sounds like it’s really the fact that the commission is doing it and interfering with judge’s judgement in individual cases.

Charles Fried:

–Well, I would answer that question ultimately by saying that I do not know what provision of the Constitution is violated when an independent agency does make general but really quite guiding legislative judgments ultimately specific.

Alan B. Morrison:

It is, I suggest, the fact that if this Commission is allowed to do this that we will have commissions on punitive damages dealing with remedies, on pain and suffering dealing with remedies, on statues of limitations dealing with remedies, at least in Federal causes.

No, your Honor.

Charles Fried:

I don’t think it violates any provision of the law.

Alan B. Morrison:

Indeed, we could have the commission re-write the bankruptcy code, for what is the bankruptcy law after all but a series of remedies for pre-existing rights?

I want to be precise in what I’m saying.

Well, it could be that a certain amount of lawmaking can be given to executive agencies because it inevitably belongs to them, just as a certain amount of lawmaking is given to courts.

Alan B. Morrison:

And if you do not believe, as I do, that that’s sufficiently incongruous for Article III judges to be performing on their own, it certainly seems to me that given our separation of powers to add four non-judges to a commission and to have them make the policy choices offends our basic notions of separation of powers, and for those reasons, the commission cannot stand.

It is of course true that judges have always engaged in sentencing, but sentencing is not a unified act.

It’s part of their executive function, and you can augment it to a certain degree.

Alan B. Morrison:

Let me say one final word about the Solicitor-General’s notion of need for evolution.

It’s composed of several different elements.

And perhaps that’s permissible, but it’s not permissible to create an agency that has no function except to promulgate a law.

Alan B. Morrison:

If the Congress had taken the advice of many and passed this statute, these guidelines into law, we would have a very different set of circumstances, for the basic policy choices would have been made, albeit with much advice, by the Congress when it enacted it into the law.

Alan B. Morrison:

The imposition of a particular sentence in a particular case is what judges have been doing.

Charles Fried:

With respect, your honor, I do not know that provision of the Constitution is violated by that.

Alan B. Morrison:

We would then have intelligible principles against which we could determine whether, in the light of experience, the guidelines were working.

What the judges and the other members of the commission are doing here is, they are writing the rules of sentencing not to apply to themselves, but to apply to all judges.

If all it does is promulgate a law, what kind of action would you call that?

Alan B. Morrison:

We would have a very different situation, so it would be a one-shot act by Congress, followed by a commission which thereafter properly constituted could effectively carry out the law and not leave in place forever.

What’s wrong with that?

Charles Fried:

I would call that executive, your Honor.

Alan B. Morrison:

Thank you very much.

Because they have historically never done that before, and because they are making–

You would?

William H. Rehnquist:

Thank you, Mr. Morrison.

So practice really does make a difference?

Charles Fried:

If they are executing a law which directs them to make more specific the mandates in the statute, which is how we analyze this case.

William H. Rehnquist:

The case is submitted.

Alan B. Morrison:

–No, and because they are making policy decisions of a kind–

Charles Fried:

Now, beyond the delegation, beyond the delegation objection, which obviously is more formidable than I had imagined it to be–

You could say the same thing in the Hampton case.

Charles Fried:

[Laughter]

There had never been an independent agency before, so the Court should have thrown out the whole idea of independent agencies.

Charles Fried:

The complaint is made that the phrase, that this is an independent commission in the judicial branch is a cause for concern.

There’s going to be a first time for lots of things.

Charles Fried:

Should we stumble over the phrase “in the judicial branch”?

Alan B. Morrison:

–Yes, your Honor.

Charles Fried:

A number of things are quite clear: that the commission is not a court, and that is not simply a technical point.

Alan B. Morrison:

But I simply wanted to respond to Justice White’s statement that this is what sentencing judges have always done.

Charles Fried:

It is not a court because it does not issue judgments in cases, it is not subject to appellate jurisdiction, its judgments cannot be appealed from, it is not issuing final judgments.

Alan B. Morrison:

It’s not what sentencing judges have always done, and you are right, there has to be a first time.

Charles Fried:

And it is not subordinate to any court as are, for instance probation officers or bankruptcy judges.

Alan B. Morrison:

And my argument is that sentencing judges should not be doing this, because–

Charles Fried:

It is in the judicial branch in a perfectly harmless, Constitutionally harmless sense, and that is, first of all, that it is… its judicial branch connections, which explain the logistics of managing this commission… who makes out the checks, how is the budget submitted, that particular housekeeping rules, such as the Freedom of Information Act, conflict of interest laws, and xx on, will apply?

Even though they’ve always been doing it?

Charles Fried:

Similarly, there is a strong administrative connection between the commission and the administrative office of the courts, and the probation offices, which supply it with a great deal of its information.

Alan B. Morrison:

–They have not–

Charles Fried:

And that seems to me a set at consequences which Congress might have provided in detail, but in fact, it did so compendiously by stating that this is an independent commission in the judicial branch.

Well, haven’t they always been deciding what the sentence should be within the statutory range?

Charles Fried:

Furthermore, of courses, and much more substantively, this is a way of underlining Congress’ very great concern that this be an independent commission… and that, of course, is also thereby accomplished.

Alan B. Morrison:

–In an individual case.

Charles Fried:

But beyond that, I see no reason, I see no need, to engage in a rewriting or severance, or anything else, of what Congress did, because I am unable to discover any harmful, any infectious aspect to that designation.

Alan B. Morrison:

They have not always been deciding the general rule.

Charles Fried:

What the designation does do is perfectly appropriate, and if there is some work that it does do that I have not been able to discover, that is inappropriate, by all means let us sever that, but I don’t know what it is.

Well, I know, but it’s the kind of judgments that judges have always been making.

It’s been suggested that that one thing was that Congress didn’t adopt it afterwards.

Judges always make these judgments.

Charles Fried:

Well, Congress was very concerned to insist on the independence of the agency, and very concerned–

Now, you say the commission shouldn’t be making it to apply to every case, but the fact of them making the judgments is not non-judicial business.

They have adopted the Act?

Alan B. Morrison:

Well, there may be less difference between us than I think there may appear.

Charles Fried:

–Well, it could have done it one time, Justice Marshall, but the need here is–

Alan B. Morrison:

Your Honor, of course it is only the translation of the making of these judgments on an across the board basis that creates the problem.

It could do it right now, could it?

Alan B. Morrison:

But I do think that there is a difference in kind between laying down and establishing a sentence for a particular individual in a case, and laying down broad rules for–

Charles Fried:

–Indeed it could.

Well, everybody would agree to that.

Well, I mean–

Alan B. Morrison:

–That–

Charles Fried:

But the important thing is that this be allowed to evolve, that there be monitoring of the experience, collection of the data… that’s a monumental task, and continuous revision… and that is something–

But what’s wrong?

–But you wouldn’t have had this headache and this lawsuit.

What’s un-Constitutional about that?

Charles Fried:

–You wouldn’t have had this headache, but you also would not have had the promise of continuous monitoring and revision, which is what is necessary to make something which would really work.

Alan B. Morrison:

–It is the laying down of the broad rules that causes judges to be embroiled in political controversy.

Charles Fried:

So I think that if it could have been a one-shot affair, that would have been a different story, but I don’t think it sensibly could have been a one-shot, one-time affair.

Mr. Morrison, judges generally have for many years… even before the Sherman Act… decided in an individual case whether a particular combination or conspiracy was in unlawful restraint of trade, haven’t they?

Charles Fried:

I’d like to turn–

Alan B. Morrison:

Yes, your Honor.

General Fried, if there is a concern… and I submit there is… about preserving the independence and the impartiality of the judiciary, it really doesn’t make any difference which branch this is under, does it?

And you wouldn’t maintain that they can take it upon themselves to write a new Sherman Act, therefore, would you?

That concern is the same.

Alan B. Morrison:

I would not.

Charles Fried:

–I agree, it does not make any difference at all, Justice Kennedy, and I’d like to turn to the objection to the service of three judges on the committee.

It’s a different job, isn’t it?

when you do that, will you please tell me whether or not in your view the value of impartiality and independence is a value that’s protected by the doctrine of separation of powers?

Alan B. Morrison:

That’s correct.

Charles Fried:

Yes, that’s precisely what it’s my intention to do, because my view is that there is no doctrine and no provision of the Constitution which supports the argument which Petitioner has made.

Mr. Morrison, have you taken into consideration the large city courts where they have committees of judges that meet with the sentencing judge?

Charles Fried:

The framers considered an incompatibility clause, for judges, and rejected… they omitted to enact one, although they did enact one for Members of Congress.

Alan B. Morrison:

You’re talking about the non-Federal system, your Honor?

Charles Fried:

Nor was this an oversight, There are–

Where one judge calls in two other judges to tell him… sit down and decide what we’re going to do.

Would you concede that the frequent and continuous service by judges on rulemaking and lawmaking commissions might impair the impartiality and the integrity of the judiciary in the minds of the public?

Alan B. Morrison:

Yes, I’m aware of that.

Charles Fried:

–As a matter of policy and judgement, that is a very reasonable concern.

And that’s recognized as being valid and good.

Charles Fried:

But we are talking about Constitutional–

Alan B. Morrison:

Well, it has never been challenged, your Honor, but it is distinguishable on several grounds.

And you say the Constitution has no concern and no provisions to protect against that encroachment?

It certainly is legal and valid, and has been in existence for 20 years or more.

Charles Fried:

–I think that in extremes policing the margins, perhaps it does.

Alan B. Morrison:

It certainly has been in existence.

Charles Fried:

But I am struck by the fact that Chief Justice Jay served for six months as Secretary of State as did Chief Justice Marshall.

Alan B. Morrison:

It has never been challenged, and it probably is not challengeable, but there is a major difference, and that is, the three judges sit down, and they have a meeting, and they decide what’s appropriate for sentence.

How many cases were pending at that time, Chief Justice?

Alan B. Morrison:

But only the sentencing judge actually decides.

[Laughter]

Alan B. Morrison:

A judge gets advice from his or her colleagues and decides what’s appropriate.

Charles Fried:

I don’t know, but Chief Justice Marshall, I believe, signed the commission which was the subject of Mawbry v. Madison.

Alan B. Morrison:

It is not binding.

What strikes me about this argument, General Fried… it seems to me what is remarkable if there is no impediment… as you say, there is not… what is remarkable is that not that this is happening sometimes, but that it has happened so rarely.

Alan B. Morrison:

That system was known to the Congress, and it was one of the things that Congress thought might happen–

It there has been no felt impediment to members of the judiciary serving in executive positions, I’m amazed that you can come up with no more than the number of examples that you’ve brought before us.

What happens if you and I sit down to decide, and I don’t agree with you, and the next time we sit down, do you think you’re going to agree with me?

Charles Fried:

Well, I am quite–

Alan B. Morrison:

–I might, or I might not, your Honor.

There are very capable men and women in the judiciary over the years, and that so few of them should have thought that they had the time and the ability to lend to the public service in the executive branch strikes me as extraordinary.

You wanna bet?

Charles Fried:

–The matter was discussed, and the only case which I know of which discussed it at some length is United States v. Ferreira, and I think it’s quite striking what the Court said in that case.

[Laughter]

Charles Fried:

Petitioner says that Ferreira claims that the Court refused to allow… I’m quoting here from their brief… Article III judges to pass or claims such as we’re involved in.

Alan B. Morrison:

But it’s not binding.

Charles Fried:

What the Court actually said in Ferreira was that the authority conferred on respective judges was nothing more than as a commissioner to adjust certain claims.

Alan B. Morrison:

It’s not binding, and that’s the difference.

Charles Fried:

Nor can we see any ground for objection for the power in that case.

Alan B. Morrison:

It’s the difference between advice which the Congress rejected as being sufficient, and mandatory binding guidelines subject to very limited exceptions, and that is the reason the Congress felt that it was not sufficient.

Charles Fried:

That’s what this Court said, and when this Court in Ferreira considered the matter, they xx.

Well, I suppose in another sense that every time a Federal Judge hands down some ruling on a point of law, they’re binding others not before the Court, aren’t they?

So that Congress could provide that every day, every judge in the United States spends his morning on a commission and the afternoon on an Article III bench?

Alan B. Morrison:

Well, your Honor, it is–

Charles Fried:

I doubt it.

And in a sense they’re establishing precedent?

Why?

Alan B. Morrison:

–Yes, your Honor, but the rules for deviating from precedent, particularly by one judge from another judge in another circuit, or even in the same district, are far less stringent and do not give rise to the same kind of rights that are given rise to when a judge deviates from the sentencing guideline in this case.

Charles Fried:

I doubt it.

Yes, but in a very real sense, judges generally are in the business, at least at the Federal level, of making a good deal of law, in a sense.

Why, if there is no Constitutional prohibition?

Alan B. Morrison:

Well, they make law, but it’s not binding.

Charles Fried:

Because at some point, you reach the point where what you’ve done is impaired the ability of the judiciary to function.

Alan B. Morrison:

I would give the example in this very case, Your Honor… the sentencing guidelines have been before, I think it’s approximately 250 Federal judges, who have voted on their Constitutionality.

Just from the standpoint of their workload, or from the standpoint of their reputation for impartiality and independence?

Alan B. Morrison:

I do not have the latest count, I think it is slightly more than 50 percent who have decided they are un-Constitutional, and less than 50 percent Constitutional, for a variety of different reasons.

Charles Fried:

I think the two begin to merge, at the point you mentioned.

I know, but does any of them include the argument you’re just making?

Well, then, the limiting principle is that there is some limitation on whether or not the independence and the impartiality of the judges can be impaired by a delegation.

Alan B. Morrison:

Many of them include my argument.

Charles Fried:

I think there is some limit.

Alan B. Morrison:

Some of them include delegation arguments, some of them include due process arguments, some of them include arguments I’ve chosen not to make.

And it’s in the Constitution?

Alan B. Morrison:

There are a whole variety, and I would say the same is true on the other side.

Charles Fried:

Well, I think it is gathered from the principles of the Constitution, but the practice–

Alan B. Morrison:

There have been cases upheld on grounds that have not been urged by the parties.

Well, is it a Constitutional doctrine?

Alan B. Morrison:

The point I make, Justice O’Connor, is to indicate that at least in this particular kind of controversy, no one has felt bound by what their fellow judges have done.

Charles Fried:

–Yes, yes, it is.

Alan B. Morrison:

Even in the same district courts, there have been deviations in the same district court, and there have been different defendants being sentenced by different people until this case can be decided.

Charles Fried:

But the practice of distinguished Chief Justices of this Court, and the words of this Court indicate that those limits are nowhere near as tightly drawn as Petitioners would suggest.

Alan B. Morrison:

Now, the policy choices that this commission had to make were inevitable, given the kind of functions that it would perform, and that the Ninth Circuit was correct in describing these choices as political.

Charles Fried:

Indeed, Petitioner draws the limits very tightly, very tightly, and I think that the practice and doctrines of this Court clearly indicate that that tight a drawing has no basis.

Alan B. Morrison:

And Indeed, that is what the Congress expected, because Congress proscribed the presence of more than four members of the commission from being of the same political party.

Charles Fried:

I simply don’t want, and it would imprudent, to suggest there are no limits.

Alan B. Morrison:

That kind of restriction, which is extremely common in executive branch agencies, where we expect our executive branch officials to be making policy, is unique in the judiciary, and it’s unique in the judiciary because we do not expect those bodies in the judicial branch to be making policy, making these kind of political choices.

Charles Fried:

If there are limits, of course they are Constitutional limits.

Well, that speaks in favor of the Solicitor-General’s argument that in fact this is executive power being exercised.

Charles Fried:

So, to that extent, I would certainly agree.

Alan B. Morrison:

I agree, your Honor, and that if the power is properly delegable, it must be executive power.

Of course, no judge in this case was required to serve at all.

Alan B. Morrison:

Now, the Solicitor-General has a matter which I’m sure he will tend to, of how he’s going to move the commission out of the judicial branch, where Congress so carefully placed it, into the executive branch, but in any event… and I’d like to turn to this now, if I may… we don’t think it makes any difference.

Charles Fried:

No judge was required to serve, and one can see how–

Alan B. Morrison:

That if Congress had placed this body in the executive branch of Government, labeled it 3 judges on it, we don’t think that would have made a single bit of difference, and it would have been just as unconstitutional there as it is here.

If all of them, if every judge who was asked to serve had refused, the commission could never have been constituted.

Alan B. Morrison:

And the reason we say that is because we go back to the purposes behind separation of powers for the judicial branch of Government.

Charles Fried:

–That is correct.

Alan B. Morrison:

That the Founding Fathers separated the judges because they wanted them to be independent, and they wanted them to be impartial.

Charles Fried:

That is correct.

Alan B. Morrison:

And they were specially concerned about that because they have lifetime appointments.

Charles Fried:

And if the requirement of three judges were thought to be an impediment, that indeed would be easily cured.

Alan B. Morrison:

Now, it’s true that they were also conscious of the possibility of tyranny developing when judges were involved in the making of the law or the executing of the law… but the principal concern was that for the Federal courts to be effective, to be seen as neutral arbiters of our law and our facts, that members of the Federal judiciary have to stay out of the political fray.

Charles Fried:

Congress could simply indicate in the legislative history that it would be loathe to confirm a commission which did not include three judges, and you would be at the same place.

xxx–

Wasn’t at least one of the Judges a senior judge?

Alan B. Morrison:

Making policy.

Wasn’t George McKenna, a senior judge?

–In all cases?

Charles Fried:

Yes, one of the judges is a senior judge, and there was a question about whether that would be all right, and the matter was adjusted to make sure that it would be all right.

Alan B. Morrison:

Openly.

Charles Fried:

That’s very useful.

The judges to follow?

I take it from what you say, General Fried, that if the statute provided that the President could appoint a designated judge, and the judge would be required to serve, that you would agree that would be un-Constitutional.

Alan B. Morrison:

That’s right, except in the context of a case of controversy where there inevitably will be some policy to be made.

Charles Fried:

I think that would create a grave problem of the sort Justice Kennedy raises, and a different case.

Alan B. Morrison:

It’s when–

Charles Fried:

I would not want to say that for instance, the Sinking Fund Commission, on which Chief Justice Jay served ex officio as Chief Justice, along with the Secretary of State and the Secretary of Treasury, was un-Constitutional, though it was a matter considered by those who were such closer to the framing than we are–

Well, when the Court of Appeals decides a case, and in effect makes some new law, or makes new policy, it certainly binds every judge in the circuit.

General Fried, I guess you’re right that it certainly will make us feel better about it if you tell us we cant be appointed to some things, whether we like it or not, but I’m not sure I see the basis for a Constitutional distinction.

Alan B. Morrison:

–It does, your Honor.

If we approve this, why?

And at the trial court–

Why can’t… If it’s, somehow a violation of separation of powers, I don’t know why it makes any difference whether the initiative comes from the Congress or from us?

Alan B. Morrison:

And it is done in the context of a case or controversy.

Whether I volunteer for this violative service, or am enlisted into it, I don’t know what difference that should make.

Alan B. Morrison:

Nobody suggests–

Charles Fried:

–Justice Scalla, that is of course not this case, but let’s think why that would be bad, because my instinct is as yours; it would be.

–And I won’t say what happens if we decide it.

Charles Fried:

I think what would be bad would come out if they designated the second most Junior Associate Justice and you simply refused to serve.

[Laughter]

Charles Fried:

What would happen then?

Well, how about the judicial councils?

Charles Fried:

Could they issue a writ of mandamus?

Alan B. Morrison:

–Well, two things about the Judicial councils.

Charles Fried:

Would your vote be counted as present, although you were never there?

Alan B. Morrison:

One is the areas in which they have power to act are by and large procedural, or they relate to matters such as discipline, which this Court’s decision in Chandler and others recognized are ancillary to the principle function of judges deciding cases or controversies.

Charles Fried:

All of those circumstances suggest that in enforcing such a mandate, they would run afoul of one or another–

Alan B. Morrison:

The judicial conference could be said to be making policy, but it principally affects the workings of the Court.

Sort of a First Amendment entanglement problem?

Alan B. Morrison:

These sentencing guidelines are intended to affect primary conduct.

[Laughter]

Alan B. Morrison:

The purpose of the sentencing guidelines, as Congress said, is not to rehabilitate defendants, but to deter them, to punish them.

Charles Fried:

–Yes, I think that… I don’t think it’s cruel and unusual problem this time.

Alan B. Morrison:

The message is to go out loud and clear.

Charles Fried:

I think that is correct.

Alan B. Morrison:

Members of the public, if you commit crimes, look at the sentencing guidelines and you will go to jail.

Charles Fried:

[Laughter]

Alan B. Morrison:

No more hoping for a judge to let you off.

Well, it might be a separation of powers argument, if a judge said, well you can’t do this to me, because I was appointed a judge, and you’re going to keep me from being a Judge.

Alan B. Morrison:

That’s the judgement Congress made, and that is a very different kind of judgement than that kind made by judicial bodies, which are largely advisory or operating in the context of a case or controversy.

Charles Fried:

I gave my judgment.

Well, that judgement Congress did make.

Charles Fried:

In my judgment, this prevents me from being a Judge.

Congress didn’t leave that judgement to the commission.

Charles Fried:

I suppose that if the Chief Justice declined to serves, as he is by statute designated to do, on the Board of the National Gallery, or the Smithsonian Institution, I don’t think that he could be compelled to do so, and that I think is the answer to Justice Scalla’s question.

Alan B. Morrison:

That is correct.

Charles Fried:

Now,–

Alan B. Morrison:

As to the ultimate effect, it did.

It’s a small point, perhaps, General Fried, but on the salary, could Congress provide that service or one of these commissions entitles the Judge to a $25,000 increase for service on the commission?

Right.

Now you’re hitting it.

Alan B. Morrison:

It did.

[Laughter]

Mr. Morrison, what if the judges in a particular circuit got together and decided that in order to improve the operation of the criminal system in their circuit, they would develop for themselves some sentencing guidelines, within the ranges established by Congress, and they’d try to get xx l their colleagues to follow them.

Charles Fried:

–Well, I must admit to you, the question is a fresh one to me.

Is that improper?

Charles Fried:

I right offhand can see no objection to it, and in fact–

Invalid?

I wouldn’t worry a lot about that problem.

Alan B. Morrison:

Well, let me say, that took place before.

[Laughter]

Alan B. Morrison:

There were sentencing groups, councils, I don’t know the precise appellation… they may have varied from court to court… but they were not mandatory, and that no right of appeal by any defendant or by the Government pertained in the event a judge diverted from that.

Charles Fried:

–Chairman Wilkens, at the time of his designation, was a District Judge, and therefore suffered a n increase in his salary.

Alan B. Morrison:

And it seems to me that the mandatory nature makes this into a law-making function that is going on here.

Well, isn’t the objection in the delightful hypothetical, I propose, that the President could prefer some Judges over others?

Alan B. Morrison:

But as I said, to me it matters not that there is an attempt here to say that judges are after all not sitting as courts of law, they’re acting in their individual capacities when they are deciding these rules… that the judges are commissioners and the fact that they are judges is simply… can be disregarded.

Is this an interference with the independence of the judiciary?

Mr. Morrison, can I interrupt with one question?

Charles Fried:

Well, that is a preference which he can show today, not to members of this Court, and certainly not to the Chief Justice, but even today the possibility of promotion, if it is a promotion–

If the program had been one that made the sentencing guidelines a recommendation to Congress, in effect, and Congress had then adopted them–

That’s provided for in the Constitution?

Alan B. Morrison:

Yes?

Charles Fried:

–Well, unless we beg the question, so is this.

–Would there be any Constitutional objection?

Charles Fried:

The question of promotion from a District bench to a Court of Appeals bench.

Alan B. Morrison:

If my client had been sentenced under the guidelines, there would have been no Constitutional objection to the sentence imposed on him, because once Congress goes to the Constitutionally mandated form for enacting legislation, I do not believe that my client could go behind it.

Charles Fried:

I thank the Court for its attention.

Alan B. Morrison:

I would still say that there has been a transgression of the principles of separation of powers by the Article III judges participating in this system, although it would be of a somewhat different nature.

William H. Rehnquist:

Thank you, General Fried.

Alan B. Morrison:

But nobody would have any standing, I don’t think to–

William H. Rehnquist:

Mr. Bator, we’ll hear now from you.

What you’re saying is it would still be un-Constitutional even though no one could challenge it?

Paul M. Bator:

Mr. Chief Justice, and say it please the Court, the problem that Congress faced when it enacted this statute is well known to this Court.

Alan B. Morrison:

–I assume no one could challenge it, but I would believe it would be un-Constitutional.

Paul M. Bator:

I’ll try to adjust my machinery here… there’s too much machinery.

William H. Rehnquist:

We’ll hear argument now in Number 87-7028, Mistretta v. the United States, and Number 87-1904, the United States v. Mistretta.

Alan B. Morrison:

It would be inconsistent with what the Founding Fathers believed should be the properly limited function of Article III judges.

Paul M. Bator:

The problem is familiar to this Court from cases like Furman and Georgia and other cases which showed ugly and indefensible discriminations and disparities and irrational distinctions in the punishments that people get in the criminal justice system.

William H. Rehnquist:

Mr. Morrison, you may proceed whenever you’re ready.

Doesn’t the undermine–

Paul M. Bator:

And in those cases, litigants came to this Court and said

Alan B. Morrison:

Mr. Chief Justice, and may it please the Court, the question presented in this case is the Constitutionality of the Federal Sentencing Guidelines, or more precisely, the Constitutionality of the process by which those guidelines were issued.

–before a committee of Congress about a substantive law?

Paul M. Bator:

“This Court should do something about that.”

Alan B. Morrison:

To answer the question, it is necessary to know how the guideline system works, and what kind of judgments went into the guidelines.

No, your Honor, I did not say that, and I’m glad you asked me that, because I want to clarify my views on that.

Paul M. Bator:

Now, this case is very different because in this case, the executive departments and the Congress for 10 years put on a massive bipartisan effort, and it said,

Alan B. Morrison:

In 1984, Congress instituted a new system of determinative sentencing.

If a judge, not acting pursuant to a statutory mandate, as we have here, and not being directed to produce a consensus determination, not only with Article III judges, but with four people who are not Article III judges, wants to proceed on his own individual basis, and to testify before Congress about a matter relating to judicial administration… it seems to me that under the balancing test that this Court has established in cases such as Nixon v. GSA and Morrison v. Olson, that that would not be a transgression upon the powers of the judiciary or upon any other powers.

Paul M. Bator:

“we’re going to do something about it.”

Alan B. Morrison:

In that determinative sentencing system, it made sentencing guidelines the centerpiece.

Well, what if a judge wants to testify about some pending bill that has absolutely nothing to do with the judiciary?

Paul M. Bator:

“We’re going to reduce these ugly and indefensible discriminations and disparities in criminal sentences.”

Alan B. Morrison:

It also recognized that it could not… chose not to issue the guidelines itself.

It may be very bad judgement, but surely he isn’t violating the Constitution.

Paul M. Bator:

And now this Court is being asked to undo this effort and really send us back to what were very ugly days of discriminatory and arbitrary sentencing.

Alan B. Morrison:

Rather, it designated in a statute of commission to do the job.

Well, your Honor, I would not say “surely”.

Paul M. Bator:

Now, I think really the key to Mr. Morrison’s submission here today is simply that this… Congress has never quite created an animal quite like this.

Alan B. Morrison:

The commission to consist of seven members, three of whom were required to be Article 3 Federal Judges, all of whom were appointed by the President with the advice and consent of the Senate, and no more than four of them could be members of the same political party.

I think that’s a closer question.

Paul M. Bator:

The sentencing commission is not quite like the parole board… its guidelines are not quite like the rules of procedure, and therefore this is un-Constitutional.

Alan B. Morrison:

Now, the term guidelines, which is what the commission is directed to issue, is something of a misnomer.

I do not think that judges should… if they tend–

Paul M. Bator:

But there is no rule of Constitutional law that Congress may not do something that is new.

Alan B. Morrison:

These guidelines are not merely advisory.

And what provision in the Constitution is it that prevents a judge from going over and testifying about a bill for appropriation for a wildlife center?

Paul M. Bator:

In this courtroom, this Petitioner must really show that this act violated the separation of powers by really prejudicing one of the branches from doing their Constitutionally-appropriate law.

Alan B. Morrison:

They are directions to sentencing judges with which the sentencing judges must comply, unless they find that there is a factor in the particular case which the sentencing commission did not adequately take into account.

–It seems to me, your Honor, that Article III of the Constitution, as most recently interpreted by this Court in Morrison… particularly the part in which the Court said that even the attempt to close down the office of the independent counsel might be administrative acts of the kind inappropriate for a judge.

Paul M. Bator:

We really must find actual prejudice under the standards of separation of powers that this Court has promulgated.

Alan B. Morrison:

And If the sentencing judge diverts from the guidelines, either above or below the guideline, then the party… either the defendant or the Government… has a right of appeal on the grounds that the sentence was unreasonably either too high or too low.

But we were talking about a court there.

Paul M. Bator:

Mere atmospherics is not enough, and our central submission, your Honors, is that there is no incursion here on any Constitutional role of the executive, and that this commission and this Act does not prejudice the independence and the impartiality and the performance by the courts of doing their Constitutionally-assigned functions.

Alan B. Morrison:

Similarly for the first time ever, both defendant and the Government has a right to appeal if they allege that the Court selected an improper guideline or otherwise misapplied the guidelines.

your Honor, I submit that if Congress had said that the function shall be performed by an independent appointing commission, or that if in this case the Court said the Congress described this body as a sentencing court, the outcome would have been the same.

Paul M. Bator:

Now, this Act is an act that, creates an institutional design.

Alan B. Morrison:

There is no dispute between the parties that the guidelines constitute the law of sentencing for Federal defendants from November 1, 1987 on, which is the effective date for the guidelines for crimes committed after that date.

We have, in our system… courts do not decide cases, controversies.

Paul M. Bator:

What are the parts of the design?

Alan B. Morrison:

In order to determine whether the guidelines are consistent with separation of powers, it’s necessary to examine the kind of judgments that the commission inevitably had to make in establishing a guidelines system.

Judges decide cases or controversies, and judges are lifetime appointees–

Paul M. Bator:

Congress says this ought to be an independent commission, and as far as I understand, there was no serious argument that that was un-Constitutional.

Alan B. Morrison:

The first question that the commission had to confront with respect to each of the crimes… and this is not simply the Title XVIII, but all of the entire Federal criminal code, and other provisions in other parts of the United States Code… where should the sentence be?

But that’s just pure metaphysics.

Paul M. Bator:

Congress said this commission should not be controlled by the political branches or by the Congress or even controlled by the courts, because this agency is not under the comination of the courts.

Alan B. Morrison:

Congress told the commission that the sentencing range for each sentence could be no more than six months or 25 percent maximum to minimum jail time.

–No, I think it’s quite a question of reality, your Honor, that a judge cannot remove his–

Paul M. Bator:

Second Congress said this agency is to be designated as being in the judicial branch… and there’s been talk about what does that mean?

Alan B. Morrison:

So, for instance, for the crime of stealing a $500 Social Security check in the mail, the commission had to decide what the appropriate punishment was for that particular crime.

That’s like saying guns don’t kill people, people kill people.

Paul M. Bator:

Congress had, I think, very simple purposes in mind in making that designation.

Alan B. Morrison:

Did it matter the commission had to decide whether the thief was caught before he spent the money, or whether the amount of the check was not $500, but $1,000, and–

[Laughter]

Paul M. Bator:

It had practical purposes.

Mr. Morrison, was the commission circumscribed at all by the outside limits of the penalties already prescribed by law?

Mr. Morrison, while you’re thinking about that–

Paul M. Bator:

The commission in its daily work works intimately, all the time, with the judicial apparatus, and it just makes logistical and administrative and budgetary sense to put it in the Judicial branch.

Alan B. Morrison:

–Yes, your Honor.

–No, I have an answer, I’m just waiting for the applause to die down.

Paul M. Bator:

Congress had a symbolic functions here in this designation.

Alan B. Morrison:

Yes, your Honor.

Yes.

Paul M. Bator:

As the Senate commission said, Congress wanted sentencing to continue to be primarily a judicial function.

Alan B. Morrison:

The commission also had to decide whether those similar kinds of monetary adjustments were appropriate for other kinds of crimes against property, for crimes such as tax evasion, for price fixing, securities fraud, and the like.

What about a judge testifying about sentencing?

Paul M. Bator:

For 150 years, it was the judges’ responsibility to sentence.

Alan B. Morrison:

Congress told the commission,

Testifying in opposition to capital punishment, for example?

Paul M. Bator:

And that–

Alan B. Morrison:

“Start with the average sentences imposed in the past, but that you can move them up or down as you see fit in order to eliminate what Congress said were unwarranted disparities.”

I would say a judge should not testify in opposition.

As courts, it was the court’s responsibility to sentence.

Alan B. Morrison:

So, the commission had to decide what factors were properly aggravating and what properly mitigating in a particular crime to decide whether the particular differences were warranted or unwarranted.

You think he would be acting in violation–

Paul M. Bator:

–But the general, the symbolism of making the judicial branch responsible for bringing order and good repair into the judicial house of sentencing… Congress thought that it was important to make the Judicial branch responsible for that role.

Alan B. Morrison:

That is precisely the kind of process that sentencing judges used to do, before the commission issued its guidelines and they went into effect.

It is a political act.

Paul M. Bator:

Congress also had in mind your Honor… it’s a precautionary note, and that’s the point of independence.

Alan B. Morrison:

The second major task that the commission had to undertake was it had to rank the seriousness of disparate kinds of offenses.

We are… what we are having in this situation is that in order to maintain our judiciary in the way that I believe the Founding Fathers envisioned, judges are supposed to stay out of political controversies.

Paul M. Bator:

Congress wanted to make sure that sentencing kept free from the domination of the executive branch, which initiates prosecutions.

Alan B. Morrison:

It was not simply enough to decide the absolute offence level for each crime, but as a practical matter, you had to rank the crimes in comparative degree of seriousness.

–May they vote?

Paul M. Bator:

It wanted to make sure the commissions is independent.

Alan B. Morrison:

So for instance, the commission had to face questions rather like this: how should you punish the sale of six ounces of cocaine, the committing of perjury before Congress, bid rigging in excess of $50 million in Government contracts, the sale of $100 in pornographic materials, or conspiracy to violate the civil rights of a Black family.

Yes, your Honor.

Paul M. Bator:

Now, Mr. Morrison’s central submission… I think Justice Scalla’s questions probe at this issue… is that the problem this statute creates is with respect to the judicial branch, because the judicial has never before been given the task of issuing legislative style rules that so directly affect the liberties of citizens.

Alan B. Morrison:

The commission chose, within the statutory range of sentencing, to treat all of those disparate offenses basically the same, and that question of how to treat them was a question that they had to address, despite the very dissimilar facts surrounding each of the crimes.

[Laughter]

Paul M. Bator:

They have been given this task that looks like the making of law… and Mr. Morrison says that’s incongruous, and therefore un-Constitutional.

Alan B. Morrison:

It is of course not the function of the Court to decide whether those analogous sentences for different crimes is right or wrong.

And what if the judge if asked by a–

Paul M. Bator:

But it seems to me, your Honor, that there are clearly important factors which show that this is a separate situation, and a distinct situation, which makes this a congruous assignment by Congress.

Alan B. Morrison:

But it’s important to note these because it indicates the kind of ranking of judgments that the commission made, these very heavily policy-oriented judgments that are plainly debatable, and that the terms of these debates are about values and about policies, and they are political in the best sense of the word… the kinds of political choices that we normally expect will be made by our political branches.

But it would be improper for them to campaign on behalf of a person for a political office.

Paul M. Bator:

Congress had, really, four factors, I think, in mind.

Alan B. Morrison:

This ranking of offenses, is inevitable, any time you have a base level system, which they had to have in this case, between 1 and 43.

–I didn’t ask that.

Paul M. Bator:

First of all, this job was not given, Justice Kennedy, to the courts or to the judges.

Alan B. Morrison:

And while the guidelines themselves don’t show the ranking, the equal ranking of disparate crimes, we have attached an addendue to our brief, which goes through each base level offense and shows you what the commission determined to be similar crimes and hence deserving of similar punishments.

And the difference is because it is visible on the one hand and not visible on the other.

Paul M. Bator:

It was given to an agency that functionally functions exactly like a hundred other independent agencies.

Alan B. Morrison:

There are, in short, no neutral principles that the commission could follow, except its own good sense and personal views about which crimes were more serious or less serious than the others.

But what if a Congressional committee dealing with a sentencing problem wanted to call in judges and ask them for the reasons they’d imposed a series of sentences in cases, just to better understand the sentencing process?

Paul M. Bator:

It happens to have three Judges.

Alan B. Morrison:

The commission recognized in a number of places that it was making policy decisions, most particularly in the policy decisions to substantially increase the amount of time which persons convicted of white-collar crime, such as tax evasion, public corruption, anti-trust violations, securities fraud, would spend in jail.

You tell me that the judges could not respond to that request.

Paul M. Bator:

But this is not the same case as if Congress had said,

Alan B. Morrison:

The third set of determinations, that the commission and to make was to decide who gets to go on probation and who doesn’t get to go on probation.

No, I do not believe that.

Paul M. Bator:

“This Court is to issue sentencing guidelines.”

Alan B. Morrison:

Under the statues, the commission was empowered to lay down the ground rules, and say below a certain level, probation is permissible, but above that level, it is not permissible.

I did not intend to say that, because if you’re talking–

Paul M. Bator:

The Court does not need to decide today whether that would be Constitutional, although in candor I should tell the Court that our position is that sentencing is so special that sentencing is so closely tied to the fair administration of justice in the courts, that if Congress finds that this Court should be made responsible for helping to bring some order into the task of sentencing, that would be valid.

Alan B. Morrison:

And the District Judge who sentences the individual is forbidden from giving probation to someone whom the commission said was not entitled to probation for that kind of crime, just as much as the District Judge is forbidden from going above or below the sentencing guidelines.

Well, what’s the difference, though?

Paul M. Bator:

But that’s not this Court’s problem today.

Alan B. Morrison:

There is, I believe, a graphic example of the effect that the commission’s judgments have on sentencing, and how the commission’s judgments reflect its views about what kind of penalties are appropriate for what kind of crime.

–I think the judges are providing expert explanation of what they did.

Paul M. Bator:

The second point about these rules is historical.

Alan B. Morrison:

And The example I refer to is that of the recent sentence of Michael Deaver.

Perhaps some of it will turn into advice.

Paul M. Bator:

This delegation is novel in form but not in substance.

Alan B. Morrison:

Mr. Deaver was convicted of committing three counts of perjury.

But one of the things we have here is not simply an individual judge acting on his or her own.

Paul M. Bator:

It is for 150 years the courts have already, in their sentencing decisions, exercised virtually unfettered lawmaking power.

Alan B. Morrison:

Assume for simplicity it’s only one count, because the guidelines become more confusing when there are multiple counts… another matter which the commission had to deal with.

We don’t simply have a collective group of judges coming in and making a recommendation.

Well, they may have decided they wanted to fetter it.

Alan B. Morrison:

Now, under the commission’s guidelines, a single count of perjury is a base level 12 offense.

We have a collective group of judges joining with four non-judges, attempting to reach a political consensus, and that consensus then becomes the law of sentencing.

Congress wanted to fetter the power that individual judges had been exercising, because they are the ones who created the problem.

Alan B. Morrison:

Because Mr. Deaver had no prior convictions, that would translate into a range of sentence between 10 and 16 months confinement.

And inherent in reaching that sentence is not merely expert advice, but very value-laden judgments.

They are the ones who gave the disparate sentences all around the country.

Alan B. Morrison:

Under the commission’s guidelines, alcoholism, which was a factor cited in mitigation, would not have been an excuse to go below the 10 months.

I think you said your position would actually carry to the extent that even if it did not become the law, it was subject to further enactment by Congress, you would still object to this whole process.

Paul M. Bator:

I think I agree with that completely, your honor.

Alan B. Morrison:

It would have been a proper basis for the judge to consider, within the 10 to 16 month range.

In this commission process.

Paul M. Bator:

In a sense, we had the worst of both worlds, because Congress had created no general standards, so the courts in their individual decisions were making general, implicit, general standards.