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October 16, 2015

"Should judges who sit on the Sentencing Commission rule on the legality of sentencing guidelines?"

The question in the title of this post is the title of this great new posting authored by Andy Hessick at Notice & Comment – A Blog from the Yale Journal on Regulation.  I urge readers to check out the whole commentary, and here is a taste:

Judge Pryor is hardly the first judge to hear a case involving the Sentencing Guidelines while serving as a member of the Commission. But the practice raises some questions. Our system is suspicious of judges hearing cases in which they have an interest. As James Madison said in Federalist 44, “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission.  Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.

His participation in the decision also raises separation of powers concerns.  The sentencing guidelines are legislative in nature.  A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator.  Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc.  But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different.  They prescribe terms of imprisonment.  Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.

October 16, 2015 at 07:53 AM | Permalink


Judge Pryor is undoubtedly a smart judge, but I agree with this article whole heartedly. Recusal has always been required when a judge's "impartiality might reasonably be questioned." 28 U.S.C. 455(a). Is it not too far fetched to think that a judge's impartiality might "reasonably" be questioned in circumstances such as this?

Posted by: Brandon Sample | Oct 16, 2015 9:13:28 AM

Justice Breyer basically wrote the Guidelines, and he authored the remedial opinion in Booker. He has also sat on a number of other post-Booker cases that have dealt with the Guidelines. I suppose he should recuse himself from all cases dealing with the Guidelines too?

Posted by: What about... | Oct 16, 2015 10:14:05 AM

My opinion on judges is: There is only one Judge to answer to.

I have never seen an "Honorable Judge" put in place by man.

Posted by: LC in Texas | Oct 17, 2015 12:03:34 PM

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