Washington Law Review
"The Judge Would Then Be the Legislator": Dismantling Separation of Powers in the Name of Sentencing Reform—Mistretta v. United States, 109 S. Ct. 647 (1989)
In the Sentencing Reform Act of 1984 Congress created the United States Sentencing Commission, an independent agency in the judicial branch charged with promulgating binding sentencing guidelines for federal crimes. In Mistretta v. United States, the Supreme Court held that the Sentencing Reform Act does not violate separation of powers principles. This Note asserts that the Court misapplied separation of powers theory, and that the Sentencing Commission violates separation of powers in two ways. First, by delegating to the judicial branch the authority to create sentencing guidelines which have the effect of law, Congress impermissibly aggrandized the core function of the judiciary. Second, judicial service on the Sentencing Commission encroaches upon the core function of the judicial branch by threatening the impartiality and independence of judges and reducing public confidence in the judiciary. This Note concludes that the advantages of judicial service on the Sentencing Commission do not outweigh the detriment to the judicial branch.
Kristin L. Timm,
"The Judge Would Then Be the Legislator": Dismantling Separation of Powers in the Name of Sentencing Reform—Mistretta v. United States, 109 S. Ct. 647 (1989),
65 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol65/iss1/10