Thursday, January 06, 2005

Detwiler: Goodbye, Guidelines

United States v. Detwiler, __ F. Supp. 2d. __, 2004 WL 2244532 (D. Or. 2004); Sentencing: Federal Sentencing Guidelines Unconstitutional Violation of Separation of Powers

Players: Tremendous victory by Ellen Pitcher and T.J. Hester of the Portland Federal Public Defender’s Office. Admirable and courageous decision by District Court Judge Owen Panner, an eighty-year old senior Judge, Carter appointee, and Army veteran.

Facts: Indigent defendant faced sentencing under the post-Feeney guidelines.

Issue(s): In light of the Feeney Amendment’s impact on the composition and powers of the Sentencing Commission, "whether Congress unconstitutionally has assigned judicial responsibilities to the Executive or unconstitutionally has united the power to prosecute and the power to sentence within one Branch." Id. at *7.

Held: "I conclude that Congress has done both." Id. Regarding the stripping of the judicial function from the Sentencing Commission and the de facto control by the Executive Branch, Panner writes: "For separation of powers purposes, if it walks like a duck, and quacks like a duck, then it’s a duck, even if Congress chooses to label it a cow." Id. at *6. "The federal sentencing guidelines system, as modified by the Feeney Amendment, violates the separation of powers doctrine by united the power to prosecute and the power to sentence, and by aggrandizing the Executive Branch while diminishing the Judicial Branch." Id. at *6. "Working together, Congress and the Executive Branch carved up the Sentencing Commission as if it were a Thanksgiving Turkey . . ." Id. at *10. "Accordingly, the only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional." Id. at *14.

Of Note: This is a remarkable decision that beautifully articulates frustrations familiar to anyone in the defense bar – and does so in a persuasive, pragmatic way. For example, Judge Pannner writes, "The Executive Branch’s newfound domination of the Sentencing Commission raises grave constitutional concerns. The Executive Branch initiates and prosecutes criminal cases. It is a party to every federal criminal proceeding. To permit the same body to serve as prosecutor, as advocate for the sovereign, and also to determine the penalty for the offense, is contrary to fundamental notions of liberty and justice." Id. at *6.

As many noted at the birth of Feeney and the PROTECT Act, this legislation raises anti-Mistretta problems. Judge Panner (aided by the Portland defenders) recognizes this exact problem, and focuses on footnote 17 of Mistretta. In other words, Judge Panner correctly recognizes that the separation of powers problem is now Executive control of the sentencing process; "The Executive Branch has usurped control of the tasks that Mistretta viewed as historically within the realm of the Judicial Branch." Given Scalia’s Mistretta dissent and Rehnquist’s criticism of the PROTECT Act, this chord may resonate before the Supreme Court.

How to Use: For the brave, this challenge is available for any contested sentencing. Also useful for any case wherein the AUSA balks at providing the third point for acceptance. See id. at *9 (discussing constitutional ramifications of third acceptance point resting in AUSA’s discretion).
For Further Reading: The District of Oregon issued an interesting disclaimer of their colleague’s brave actions. See web page here. Also see useful discussion of case on the Booker blog.

Steven Kalar, Senior Litigator ND Cal.


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