Judge Pryor, joined by Carnes, starts his order respecting the denial of rehearing this way (background
here):
A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments. Second, we explain that Matchett is not worthy of en banc rehearing.
But as members of the U.S. Sentencing Commission, should they have recused?
Andrew Hessick argues in this post that they should have:
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.
4 comments:
So in other words "coincidentally the only members of this Court to have served on the United States Sentencing Commission" are the only two federal judges in the United States who have written legal opinion holing that the United States Sentencing Commission's output is not subject to constitutional safeguards
You are expecting William Pryor to do the ethical and just thing? In a criminal case? Where he result would be relief to federal prisoners? Really?
I am no fan of Bill Pryor, but then wouldn't they have to recuse themselves from every Guidelines case? Or at least every case dealing with the legal interpretation of the Guidelines. Didn't Justice Breyer (also on the commission) author one of the most significant Guidelines cases in the Supreme Court?
"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."
Sorry, that is a difference without meaningful distinction. Judges should judge, and not create "all sorts of rules". A rule that denies due process opens the door to conviction, and sentencing.
"Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers."
Really?
Where is the constitutional separation of powers between prosecutor, judge, commission member, rule maker, lawyer advocate, etc.? All are lawyers, and in Florida, all would be members of The Florida Bar.
On the other hand, why would a judge recuse, or do anything he/she does not want? Judges are untouchable.
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