Remedies and remediation in Detwiler

The fascinating and potent decision by US District Judge Owen M. Panner in US v. Detwiler, CR 03-372-PA (D. Oregon Oct. 5, 2004) (detailed here) — which declares the federal sentencing guidelines unconstitutional after the passage of the Feeney Amendment "because it violates the separation of powers doctrine" — already has at least a few fans. Crime & Federalism here says the decision is "airtight" and "should go down as a separation of powers classic" and in blog comments here describes Detwiler as a "separation of powers masterpiece that should be included in most con law casebooks." Similarly, Robert Sheridan here has a long post on the federal sentencing system that starts by saying Detwiler shows "what a federal judge can do when hitting on all cylinders."

(UPDATE: Laurie P. Cohen, always on top of federal sentencing developments, has an article in today's Wall Street Journal entitled "U.S. Judge Rejects Constitutionality Of Sentence Rules." Among other interesting tid-bits, the article details that defendant Richard Detwiler is 60-year-old offender who "pleaded guilty to one count of interstate travel to have sex with a minor [and] faces as many as 30 years in prison.")

Though Detwiler could become a very important decision (especially if the Ninth Circuit or other courts follow its lead), I am still pondering some of its conclusions and possible reverberations. Especially with respect to remedies, I think the Detwiler decision raises many more questions than it answers. I am also left wondering how Congress could, if it wished, fix the constitutional problem identified by Judge Panner.

As I understand the Detwiler ruling, Judge Panner concluded that the passage of the Feeney Amendment — and particularly its elimination of the requirement that judges serve on the US Sentencing Commission — undermined a key premise of the Supreme Court's 1989 decision in Mistretta finding that the Sentencing Reform Act (SRA) created a constitutional sentencing structure. (Here it is worth clarifying that Mistretta only addressed the broad constitutionality of the institutional structure of the federal sentencing system created by Congress through the SRA. The federal Blakely issue being considered now by the Supreme Court in Booker and Fanfan, as noted here, concerns more narrowly the constitutionality of how the federal guidelines created by the US Sentencing Commission are being applied. In other words, it seems Judge Panner is holding that what was a constitutionally sound federal sentencing structure on April 29, 2003 became constitutionally unsound on April 30, 2003 when President Bush signed the Feeney Amendment into law as part of the PROTECT Act.

Though this initial conclusion can (and should) be widely debate, I am even more intrigued by the remedy Judge Panner decides is appropriate. Notably, the defendant in Detwiler requested that the court "invalidate the Feeney Amendment and pass sentence under the pre-Feeney Guidelines." But Judge Panner sees the matter this way:

The separation of powers issue addressed in this opinion is not a mere challenge to one particular guideline, that can be stricken without disturbing the Guidelines system as a whole. Either the Sentencing Guidelines scheme as it exists today is constitutional, or it is not. There is no middle ground.... [T]he issue presented here is not the constitutionality of "this Act" — which is a smorgasbord of unrelated provisions stuffed into a single bill for political reasons — but the constitutionality of the Guidelines sentencing scheme itself. The challenged provisions go to the heart of what the Sentencing Commission is today, and whether the present federal Guidelines system, as it has been constructed by Congress, passes constitutional muster. I cannot unilaterally alter the structure of the Sentencing Commission to bring it into compliance with the Constitution. Only Congress potentially has that power.

Accordingly, the only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional. I will sentence Defendant to a term within the minimum and maximum terms prescribed by statute, as I would have done prior to enactment of the Guidelines. I will consider the Guidelines when imposing sentence, but they are now just advisory guidelines, not binding mandates.

Though I am certainly no expert on remedies for separation-of-powers constitutional defects, this part of the Detwiler decision seems anything but "airtight." Especially in light of severability principles which call for upholding as much of a congressional act as possible, the remedy adopted by Judge Panner seems much too broad and also stunningly disruptive. I presume his ruling means that he won't apply the guidelines in any case, even in a case not at all impacted by the provisions of the Feeney Amendment or by subsequent Sentencing Commission action. Moreover, it is unclear based on Judge Panner's logic how Congress could even fix the constitutional problems he identifies, save for perhaps directly enacting into statutory law all of the existing guideline provisions through regular legislation. Moreover, his ruling necessarily calls into question every guideline sentence imposed since April 30, 2003 when the Feeney Amendment became law (and that's probably somewhere around 100,000 federal sentences). Wow!

I would be eager to hear from constitutional experts about what are the various possible and sensible remedies for the separation-of-powers constitutional defect that Judge Panner identifies. My uniformed opinion is that the defendant's proposed remedy in Detwiler makes a lot more sense than the remedy adopted by Judge Panner, and I also think there are likely a range of other possibilities as well.