Historical Context
For much of American history, federal judges exercised significant discretion in sentencing those convicted in their courts. Most federal criminal statutes attached a wide range of potential penalties to offenses and left judges to decide what sentence within that range was appropriate. For some crimes, such as kidnapping, federal judges could sentence individuals to anything from probation (a noncustodial sentence designed to rehabilitate offenders) to life imprisonment.
Beginning in the 1970s, both liberal and conservative politicians argued this judicial discretion had led to troubling results. Liberals, like Massachusetts Senator Edward “Ted” Kennedy, pointed to the potential unfairness of different punishments for individuals who had committed similar offenses and suggested that these disparities might harm vulnerable minority groups. Conservatives, including Senator Strom Thurmond of South Carolina, argued that federal judges had generally proven too lenient and that this had emboldened criminals, exacerbating a nationwide rise in crime since the 1960s.
In 1984, Congress responded to these concerns with the Sentencing Reform Act. The Act created a new body designed to resolve sentencing disparities by producing mandatory guidelines for judges. This body, the U.S. Sentencing Commission, was designated an independent agency within the judicial branch of government. That status was unusual, but not unprecedented. The Administrative Office of the U.S. Courts, which administers much of the judiciary’s day-to-day operations, and the Federal Judicial Center, the judiciary’s research and education agency, occupy comparable positions with the branch. The Commission was led by a seven-member board, at least three of whom had to be federal judges. The President appointed the board with the advice and consent of the U.S. Senate. The Commission produced the first Sentencing Guidelines Manual in 1987. These guidelines set penalties based on a complex combination of factors related to both the crime and the offender.
Legal Debates before Mistretta
The Sentencing Commission’s structure raised important constitutional questions. Some suggested that the Commission violated the principle of separation of powers by mixing executive, legislative, and judicial powers and by interfering with the ordinary judicial process. Supporters argued that there was nothing unusual or improper about judges serving other official roles—Chief Justice Warren, for example, had led the commission investigating the assassination of President John F. Kennedy in the 1960s, and five justices had served on a commission that helped decide the outcome of the contested 1876 presidential election.
Critics also argued that Congress had given the Commission too much lawmaking power. Article I, section 1 of the Constitution states that, “All legislative powers . . . granted [by the Constitution] shall be vested in a Congress[.]” The Supreme Court had previously held this to mean Congress could not give another governmental entity, like the President or an executive agency, the power to make new laws. Some argued that the Sentencing Guidelines ran afoul of this idea, sometimes called the “nondelegation doctrine,” by effectively creating new laws governing federal criminal punishments. Though only Congress could make laws, other branches of government often had to interpret and implement Congressional statutes. Supporters of the Sentencing Reform Act argued that Congress had wisely entrusted the complex issue of sentencing to an independent body that would be less likely to insert politics into the criminal process. They claimed that, far from creating its own laws, the Commission was simply designed to ensure the existing criminal statutes were applied fairly.
Finally, some lawyers and scholars raised questions about the way the guidelines would operate. Some argued that limiting judicial discretion through nonlegislative rules violated the Due Process Clause of the Fifth Amendment by impairing defendants’ access to a fair, individualized trial. Others attacked specific provisions of the guidelines, such as the enhancement of sentences for additional offenses the defendant likely committed, but which the government did not allege or prove at trial.
The Case
On December 10, 1987, John Mistretta was charged in the U.S. District Court for the Western District of Missouri with three federal offenses arising from a narcotics sale. Mistretta pleaded guilty to one of the charges (conspiracy to distribute cocaine) in exchange for the government’s agreement to drop the other charges. Mistretta’s attorneys also filed a motion arguing that District Judge Howard F. Sachs should not follow the sentencing guidelines in setting his punishment because the Commission that created them was unconstitutional. Judge Sachs denied this motion and sentenced Mistretta to eighteen months in prison, along with a subsequent term of supervised release and a fine. The original statutory range for Mistretta’s offense ran from probation to twenty years in prison. It is thus not clear whether Mistretta would have received a lighter sentence in the absence of the guidelines. Nevertheless, the guidelines prevented Judge Sachs from exercising such leniency had he considered a lesser sentence more appropriate.
Mistretta appealed to the Court of Appeals for the Eighth Circuit. Somewhat unusually, the Supreme Court of the United States agreed to hear Mistretta’s appeal prior to the Eighth Circuit’s decision. Since several other courts had already reached conflicting results over the constitutionality of the Sentencing Reform Act, the Justices wanted to resolve potential uncertainty. (The Eighth Circuit eventually issued a decision upholding Mistretta’s conviction.)
The Supreme Court’s Ruling
The Supreme Court focused on two, somewhat related, issues: (1) legislative delegation; and (2) separation of powers. The Court’s nondelegation doctrine states that Congress cannot give other entities the power to make laws. It can, however, set up executive agencies that may craft regulations designed to carry out congressional legislation. The doctrine of separation of powers prohibits one branch of government from intruding too far on the role of another branch. In this instance, Mistretta’s lawyers argued that Congress had created a body that unduly interfered with one of the most fundamental aspects of the judicial role. Additionally, they argued that the President’s power to appoint and remove judges to serve on the Commission gave him undue influence over judges, who should be politically independent.
In an 8–1 decision, the Supreme Court of the United States upheld the constitutionality of the Sentencing Commission. Justice Harry A. Blackmun wrote the Court’s opinion. Blackmun began his discussion of the case by emphasizing that it was rare for the Court to invalidate a law on nondelegation grounds (it had done so only twice before). This was because it was important to permit Congress flexibility to deal with issues that might not be amenable to ordinary legislation. Congress need only set the agency some “intelligible principle” controlling its work to comply with the Constitution for these purposes. Since the Sentencing Reform Act specified the goals of the Commission, the broad framework for its operation, and several required components of the guidelines it was to produce, the Court determined the act had met this standard.
Justice Blackmun devoted the majority of this opinion to the separation of powers issues raised by Mistretta’s appeal. He began his analysis of this issue by acknowledging that the Founders believed the separation of powers was an important component of the constitutional framework, but they “rejected . . . the notion that the three Branches must be entirely separate and distinct.” A law did not violate the Constitution, therefore, whenever it created some overlap between the powers exercised by different parts of the government. Instead, the question was whether one branch was attempting to “aggrandize” itself at the cost of the power or independence of the other two.
Applying this rubric, Blackmun dismissed the notion that service on the Commission threatened judges’ impartiality. He noted that there was a long history of federal judges serving additional, nonjudicial roles. For example, John Jay, the first Chief Justice of the United States, had also served as ambassador to England, Chief Justice John Marshall briefly served as Secretary of State after joining the Court, and Justice Robert Jackson had been the lead prosecutor in the Nuremburg Tribunal following World War II. Judicial service on the Commission, moreover, was voluntary; judges could not be “conscripted” into performing this extrajudicial role. He also noted that the text of the Constitution implicitly recognized judges’ ability to serve other roles. While Article I contained a provision prohibiting members of Congress from serving in other government offices, there was no such language in Article III, the part of the Constitution dealing with the federal courts.
The Court’s majority similarly dismissed as “fanciful” the notion that the President’s appointment or removal of Commission board members threatened judicial impartiality. The President had long possessed the power to “promote” judges by nominating them to higher judicial offices, Blackmun noted, but this power had not undermined judges’ ability to remain impartial. Moreover, removal from the Commission was restricted to cases of “good cause,” meaning the President could not simply remove a judge because he or she did not like a ruling the judge had made. Finally, even were a judge removed from the Commission, he or she would retain his or her judicial office “during good behavior” under Article III, section 2 of the Constitution.
The Court noted a related issue that presented greater difficulty: whether the work of the Commission was so political that judges’ involvement created an appearance of bias or partiality. Justice Blackmun reasoned that, although judges had to avoid any appearance of political entanglements, the Commission’s work was solely designed to “rationalize” the judicial process of sentencing. This, he concluded, was “an essentially neutral endeavor in which judicial participation is peculiarly appropriate.”
Justice Antonin Scalia disagreed with his colleagues and wrote a dissenting opinion laying out a different view of the Constitution and the commission. Scalia argued that, because the guidelines were mandatory, the Commission was improperly interfering with the judicial role by requiring judges to impose sentences with which they may or may not have agreed. In doing so, it was making law as if it were “a sort of junior-varsity Congress.” Justice Scalia emphasized that it was essential to democracy that only Congress make the laws setting criminal penalties. He claimed that if Congress could avoid controversial or difficult topics like criminal sentencing by setting up independent commissions in other branches of government, then the people would no longer have any control over those governing them.
Turning to the separation of powers issue, Scalia lamented that the rest of the Court seemed to treat the Constitution as “no more than a generalized prescription that the functions of the Branches should not be mingled too much[.]” It was not for the Court to decide how much blurring of lines between the branches was permissible. The only legitimate elements of “cross-over” between the powers exercised by the three branches of government, he argued, were those explicitly laid out in the Constitution itself, such as the President’s veto power over Congress or Congress’s powers of impeachment.
Aftermath and Legacy
Although Mistretta established the Sentencing Commission’s constitutionality, it did not resolve all issues related to federal sentencing or the guidelines themselves. As the nation’s prison population continued to swell from the 1990s to the 2010s, many politicians and activists, including some who had initially supported the Sentencing Reform Act, argued that the guidelines had produced unduly harsh sentences for nonviolent offenses, particularly those tending to involve nonwhite and poor defendants at disproportionate rates. Debate continues on these issues.
From a legal perspective, Mistretta left several questions about the guidelines’ application unanswered. Subsequent cases raised such issues, including questions over the mandatory nature of the guidelines and a specific set of rules that required judges to take into account uncharged crimes the defendant may have committed. Under the guidelines, these offenses increased the sentence, but were not subject to proof beyond a reasonable doubt or evidentiary restrictions like hearsay rules. In United States v. Booker (2005), the Supreme Court held this process unconstitutional under the Sixth Amendment, which entitles criminal defendants to a trial by jury. Importantly, Booker did not strike down the guidelines in their entirety. Instead, the Court held that federal judges should consult the guidelines, but are not bound to impose the sentences listed in them.
Discussion Questions
- The separation of powers is a fairly abstract idea. What does Mistretta suggest about its practical importance?
- Congress could have conducted an investigation on sentencing and formulated exactly the same guidelines the Commission produced in the form of a statute. Would this have resolved all of the constitutional questions raised in Mistretta?
- The issue of sentencing guidelines arguably pits two of the most important aspects of judging against each other: flexibility and consistency. Is one more important than the other? Is the tension between these two goals unavoidable?
- Justice Scalia argued it was important for Congress, rather than unelected commissions, to make federal laws. Is there an argument that it is equally important for judges to control criminal trials even though they are unelected? Why or why not?