Justices Uphold Sentencing Rules : Fixed U.S. Prison Terms Without Possibility of Parole Backed, 8-1

WASHINGTON —  The Supreme Court on Wednesday upheld the tough new federal sentencing rules that give convicted criminals fixed prison terms without possibility of parole.

On an 8-1 vote, the justices rejected the view that the sentencing rules are unconstitutional because they were drawn up by a seven-member panel of judges and professors, not by Congress.

The new sentencing system, which took effect in November, 1987, is based on the idea that a term in prison is intended to punish a criminal, not rehabilitate him. In the past, federal judges had broad leeway to choose a sentence for a convicted criminal. Some judges gave light sentences in part because they believed that prison was not rehabilitative. If a convict were sentenced to a stiff term, he could get his sentence reduced by as much as two-thirds by U.S. parole authorities.

Congress Creates Commission

In the Sentencing Reform Act of 1984, Congress said it wanted punishments geared strictly to the crime, not the wishes of a judge. An independent U.S. sentencing commission was created to set precise punishments based on factors such as the severity of the crime and whether violence was involved. In addition, once the new system took effect, the U.S. parole authority was abolished.

As a result, those convicted of white collar crimes such as tax evasion and securities fraud now are more likely to get a fine and a prison term.

Under the old standards, a bank robber might get a prison sentence from one to 25 years on the judge’s assessment of the crime and the perpetrator. The new rules set up a point system based on the severity of the crime and a host of other factors. For example, bank robbery is 18 points. If a firearm is brandished, add 3 points. If the gun is fired, add 5 points. If a bystander is injured in any way, add 2 points. If the bystander suffers a “permanent or life threatening injury,” add 5 points. In total the rules consider seven factors about the crime and 11 factors about the criminal.

Finally, the judge adds up all the points, turns to what looks like a tax table, and finds a sentence. The chart will proscribe a sentence that may read, for example, 10.5 years to 12.5 years in prison.

The sentence, once imposed, may be reduced only by 54 days per year for the convict’s “good behavior.”

Jon Sands, a public defender in Phoenix, said that the rigidity of the new rules will discourage plea bargaining. “I had a case this morning with someone facing two first-degree murder charges. I was going to plead him (guilty) because he would get 30 years and be out in 20,” Sands said. “But I heard the court upheld the new guidelines, and that means a life sentence with no parole for my client. So we’re going to trial.”

“This is one of the most important decisions handed down by the court this decade,” said Sentencing Commission Chairman William W. Wilkins Jr., an appellate judge from South Carolina. “The (sentencing) guidelines dramatically improve the federal criminal justice system by ensuring more uniform, fair and truthful sentences.”

His view is not shared by some trial judges. They have complained that the new rules tie their hands and force them to impose sentences without sufficient regard to the details of crime and case before them. The first challenge was in San Diego last year. Since then more than 150 judges and the U.S. 9th Circuit Court of Appeals covering California and the western United States have struck down the rules as unconstitutional, according to figures kept by the sentencing commission.

A majority of the judges on the Los Angeles federal bench in an en banc hearing last year declared the guidelines unconstitutional. Since then, a few judges have sentenced prisoners under the new guidelines.

Expects Resentencing

But most of the Los Angeles judges sentenced defendants under the old rules, and “many of those are going to have to be resentenced in light of the Supreme Court’s ruling,” U.S. Atty. Robert C. Bonner said Tuesday.

“The guidelines are going to have the effect of generally increasing the length of sentences in this district, particularly in the area of white collar crime,” he said. “I think it will have the effect of assuring at least some kind of prison sentence in a greater number of these cases, which we prosecute in significant numbers in this district.”

Federal judges in San Diego have been sentencing defendants under the old law since the 9th Circuit ruling on the guidelines last August, but prosecutors said Wednesday that they do not plan to request that the defendants be resentenced under the new guidelines.

“Our feeling, at least at first blush, is that we don’t intend to go back on any of these cases,” said James W. Brannigan Jr., chief of the criminal division of the U.S. Attorney’s office in San Diego. “We plan to start from today.”

However, some defense attorneys said they may ask that some of their clients, especially those convicted of immigration-related offenses, be resentenced under the new guidelines because judges will be forced to impose lighter sentences.

In one such case, a man convicted of alien-smuggling charges received a three-year sentence from a judge who applied the old law, according to John Lanahan, a lawyer in the San Diego Federal Defenders Office. Lanahan said that he plans to appeal the sentence because his client could get only a maximum of six months under the new guidelines.

William Schultz, a Washington lawyer who worked on the challenge to the sentencing rules, said that many judges saved themselves from a problem during the last year by giving sentences that fit within the new rules.

“They would strike down the new guidelines, but then make sure their sentence fit within them. That way, they don’t have any problem now,” Schultz said.

The Supreme Court, foreseeing chaos as some judges adopted the new system and others declared it unconstitutional, quickly agreed to hear a test case and set arguments during the first week of its October term. Its 51-page opinion issued Wednesday puts to rest any remaining legal doubts about the sentencing commission or its existing rules.

But several hundred criminals whose sentences were set by judges using the old rules may have to be resentenced, according to John Steer, general counsel for the commission.

Less Severe Problem

Last year, Steer said it was possible that thousands of people across the nation would have to be resentenced after the high court decision. But the problem is much less severe than expected. Only a few hundred people who were sentenced by judges using the old rules later filed appeals of their sentence. And the government appealed in only 80 instances where it thought sentences were too light, Steer said.

The constitutional challenges were raised by Washington lawyer Alan Morrison, whose Ralph Nader-affiliated legal firm stresses accountability in government. Only Congress can set rules that are binding on judges, and it cannot delegate this authority to an independent commission, Morrison contended. Furthermore, the Constitution’s separation-of-powers doctrine does not allow federal judges to serve on such a lawmaking body, he said.

Justice Harry A. Blackmun, writing for the court, dismissed the challenges as raising “more smoke than fire.”

‘Intelligible Principle’

Since 1935, the high court has never struck down a law because Congress gave away too much of its authority, he pointed out. As long as Congress sets forth “an intelligible principle” to guide rule-makers, it can leave it to an independent agency to set specific rules to carry out its policy, Blackmun said.

Nor does the Constitution demand that all rule-making take place in the legislative body of government, he added. “The framers did not require--and indeed rejected--the notion that the three branches must be entirely separate and distinct,” he wrote.

His opinion makes clear that the court majority does not favor striking down government bodies that do not fit neatly into one of three boxes: executive, legislative, or judicial. This is the same “flexible” view toward the separation-of-powers doctrine that the justices took last June in a ruling upholding the independent counsel law.

Blackmun conceded that the U.S. Sentencing Commission is “an unusual hybrid in structure and authority.” It is housed in the judicial branch, three of its seven members are sitting judges, and it sets rules that are binding on the courts. But that does not make it unconstitutional, Blackmun concluded in the case (Mistretta vs. United States, 87-7028).

Justice Antonin Scalia issued a heated dissent, just as he did in the independent counsel case. “The power to make law cannot be exercised by anyone other than Congress,” he wrote.

The sentencing commission acts as “a sort of junior-varsity Congress. . . . This is an undemocratic precedent that we set. . . . I foresee all manner of ‘expert bodies,’ insulated from the political process, to which Congress will delegate various portions of its law-making responsibility,” Scalia said.

Some Avoid Clash

Congress could have headed off Scalia’s complaint if it simply had approved in law the rules issued by the sentencing commission. But some members of Congress said they wanted no part of the inevitable liberal-conservative clash over the specific rules.

Blackmun’s opinion may reignite such a clash over the death penalty. Last year, the commission considered putting into effect procedures that would allow the death penalty to be given for certain federal crimes such as espionage or a murder during a bank robbery or airline hijacking. Federal laws still on the books permit a death penalty for these crimes, but they are considered unconstitutional because they do not comport with the procedural standards set forth in past Supreme Court rulings.

Staff writers Kim Murphy in Los Angeles and Jane Fritsch in San Diego contributed to this story.