« Confining Blakely's impact in its home state | Main | More proof the guidelines limit "windfalls" »

October 6, 2004

West coast offense

My Dad taught me the old saying that "the best defense is a good offense." Though many would debate whether this holds true in football for adherents of the West Coast Offense coaching philosophy, the very important (and very entertaining) decision by Oregon US District Judge Panner in US v. Detwiler (available here) suggests that at least one judge is ready to try out the philosophy in the arena of federal sentencing.

In Detwiler, Judge Panner provides a thorough and thoughtful account of how the Feeney Amendment has changed certain premises that were key for the Supreme Court in upholding the structure of the Sentencing Reform Act in Mistretta v. US, 488 U.S. 361 (1989). Following an introductory section with frequent quotes from Mistretta and the Federalist Papers, Judge Panner first documents the history and passage of the Feeney Amendment in stark and provocative terms:

Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.... This legislation, of vital importance to the Judicial Branch, was "enacted without any consideration of the views of the Judiciary." Chief Justice William Rehnquist, 2003 Year-End Report on the Federal Judiciary. The public likewise had no opportunity to be heard.

This stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure. No emergency mandated acting in such a precipitous manner, without consulting a coordinate Branch of government or allowing opportunity for public input or Congressional debate. The legislative record also is replete with remarks by some members of Congress, and the Attorney General's deputies, expressing hostility toward the Judicial Branch and toward judges who fail to decide cases in the manner favored by those individuals....

Judge Panner thereafter documents the impact and consequences of the Feeney Amendment's changes to the structure of the US Sentencing Commission and the operation of federal sentencing law:
The alterations to the Sentencing Commission effected by the Feeney Amendment require re-examination of a fundamental premise of Mistretta, namely, that the Sentencing Commission is part of the Judicial Branch.

I see no principled basis on which to distinguish the Sentencing Commission, post-Feeney, from the myriad of other administrative agencies that populate the Executive Branch.... 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. The Plan of the Constitution cannot be circumvented through mere labels.

The practical consequence of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch. Any involvement by the Judicial Branch in the Commission's work is solely by the grace of the Executive Branch.

Consequently, explains Judge Panner, because the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."

Detwiler is a powerful and important ruling (not to mention a great read), and it opens up another critical front in the pitched battle between the US Congress and the Federal Judiciary over sentencing law and policy. Moreover, as Howard Bashman astutely notes here, because the Ninth Circuit will surely be called upon to review this decision, "this matter is likely to remain interesting for quite some time to come."

October 6, 2004 at 09:43 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference West coast offense:

» Oregon Rules Federal Sentence Guidelines Unconstitutional from ACSBlog: The Blog of the American Constitution Society
In Professor Douglas Berman's Blog today, he writes about the newly decided Oregon case, US v. Detwiler, in which Senior US District Judge Owen M. Panner declares the federal sentencing guidelines unconstitutional. The holding is based on Congress's pa... [Read More]

Tracked on Oct 6, 2004 1:54:44 PM

» Sentencing Law and Policy: West coast offense from Crime
Sentencing Law and Policy: West coast offense Ah, what sweet revenge. Doug Berman has the details. UPDATE and bump: I just read the order - it's airtight and should go down as a separation of powers classic. I was going to summarize it, but it defies e... [Read More]

Tracked on Oct 6, 2004 5:28:46 PM


Is it true that the Ninth Circuit's composition is being challenged in Congress as we speak, with the purpose of diluting it percieved liberal bias?

Posted by: Jeannie | Oct 6, 2004 2:35:08 PM

I read the order and marvel at its beauty. It is a separation of powers masterpiece that should be included in most con law casebooks. I'm interested to see what the prosecutorial membership of the Federalist Society has to say. I don't think you can consistently support separation of powers and oppose this ruling.

Posted by: Crime & Federalism | Oct 6, 2004 3:02:42 PM


It's true. See this post:


Posted by: Senator Spectator | Oct 6, 2004 3:48:20 PM

Excellent post, Doug, responding to which I've posted a comment on my own blog, whose URL is, I hope, noted here someplace.

I've taught Constitutional Law at San Francisco Law School for the past three years, including now. My first seven years of practice were as a prosecutor (San Francisco District Attorneys Office and elsewhere), and for the past thirty years I've been in private practice, state and federal (mostly state), mostly involving criminal defense.

Posted by: Robert Sheridan | Oct 6, 2004 6:17:35 PM

I'm trying to help a nephew of mine who is being sentence here pretty quick and I was told to look up something called the "Weat Act" and it would maybe help in setting up some questions for the attorney to address ..the real issue is that my nephew has strikes..and well there was a death in what we are calling an accident..but well they had been partying and well although it doesn't look good for my nephew if I can get a little help I would appreciate it..

Posted by: Catalino | Sep 25, 2007 5:52:42 PM

hp tx1000 battery

Posted by: | Oct 14, 2008 5:54:04 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB