That section commands the Sentencing Commission to "assure that the guidelines and policy statements are entirely neutral as to the race, sex, national original, creed, and socioeconomic status of offenders." (emphasis added).
Relying on United States v. Frank, supra, the defendants further argue that the guideline's divestment of judicial sentencing discretion violates due process. They acknowledge that the legislature can eliminate sentencing discretion, but "the application of a mechanical sentencing procedure which prohibits the sentencing court from assessing circumstances applicable to a Defendant does violate rights of due process of law." Brief in Support of Defendant Larew's Position Paper Regarding Sentencing 5. The guidelines' evil lies in the severe restrictions they place on the weight to be given the mitigating circumstances traditionally offered in sentencing.
The government concedes that all other things being equal, the Criminal Livelihood provision may result in more severe treatment for an indigent defendant. Government's Response With Respect to the Constitutionality of the Criminal Livelihood Provision of the Guidelines 3. However, since indigency is not a suspect classification, statutory distinctions based upon it will be upheld so long as the distinction "bears some rational relationship to a legitimate state purpose." United States v. Hawkins, 811 F.2d 210, 216 (3d Cir. 1987). See also Marshall v. United States, 414 U.S. 417, 422, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974). According to the government, the legislative history of the Dangerous Special Offender statutes, 18 U.S.C. § 3575(e)(2) (repealed by Pub.L. 98-473, Title II, § 219(a), Oct. 12, 1984, 98 Stat. 2027), and 21 U.S.C. § 849(e)(2) (repealed by Pub.L. 98-473, Title II, Ch. II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1987), upon which the Criminal Livelihood provision is based in part, indicates a rational basis for these distinctions. These statutes aim at preventing recidivism by imposing heavier penalties on professional criminals, those who make their livelihood from crime. An increased penalty is imposed "because the defendant has chosen crime as a profession, as indicated by a pattern of criminal activity and a lack of any other means of livelihood," not because the defendant is indigent. Government's Response 12-13.
The government argues that Frank was decided incorrectly. The power to specify punishment for crimes belongs to the legislative branch. Only when faced with the death penalty does a defendant have a constitutional right to individualized and discretionary punishment.
A. Discrimination Against the Indigent.
Initially, we find unconvincing Larew's argument that the Criminal Livelihood guideline deviates from the statutory mandate. Section 994(d) of Title 28 demands neutrality as to socioeconomic status, but this command is not absolute. See S.Rep.No. 98-225, p. 171 n. 409, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3354. It is unlikely that the Criminal Livelihood provision of the guidelines offends the statutory directive, for the provision is not an innovation of the Sentencing Commission; rather, it comes verbatim from another subsection of the same statute upon which Larew relies: "The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant committed the offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." 28 U.S.C. § 994(i)(2) (emphasis added). We accept this more specific language as more precise indication of the Congressional intent. See Morton v. Mancari, 417 U.S. 535, 550-51, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974).
The statutory issue aside, we hold that the Criminal Livelihood provision does not unconstitutionally discriminate on the basis of a defendant's financial resources. Although we reach the same result that the government advocates, our analysis differs. We subject this legislation to more searching scrutiny, but we find that it still passes constitutional muster.
Undoubtedly, the Criminal Livelihood provision discriminates on the basis of wealth. The guidelines and the Sentencing Reform Act do not define "a substantial portion of his income." The legislative history states that Congress adopted this language from the Dangerous Special Offender statutes, 18 U.S.C. § 3575(e)(2), and 21 U.S.C. § 849(e)(2). See S.Rep.No. 98-223, pp. 172-173, 176. Those little-used provisions of those statutes defined as a dangerous special offender a defendant who committed a felony as part of a pattern of criminal conduct, "which constituted a substantial source of his income." The statutes went on to define "substantial source" as an amount which exceeds the yearly minimum wage under the Fair Labor Standards Act, 29 U.S.C. § 206(a)(1) (approximately $ 6,700), and which exceeds half of the defendant's declared adjusted gross income. 18 U.S.C. § 3575(e); 21 U.S.C. § 849(e). Since we do not detect any Congressional intent to alter this definition and since we find that the definition's purpose of providing an explicit, convenient, and objective measure of proof to be wise, we adopt it as definitive of the "substantial portion" language within the guidelines. Using this definition, the Criminal Livelihood provision applies to Larew and Kerr under the facts as stated in the presentence report, but it would not apply to a person of identical criminality but having a declared adjusted gross income of over $ 30,000. If a person of this income engaged in the identical pattern of criminal conduct and had the same criminal history as Kerr and Larew, he would receive a sentence of between 10 and 16 months and be eligible for probation, while Kerr and Larew face 24 to 30 months with no possibility of probation, solely because they lack the financial resources of the richer defendant.
Poverty is not a suspect classification; laws discriminating on that basis are not subject to strict scrutiny. Harris v. McRae, 448 U.S. 297, 323, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980). Consequently, the government urges that we apply a "rational basis" test. Under this test, the legislation enjoys a strong presumption of constitutionality, see Vance v. Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979), and we must sustain unless no "state of facts reasonably may be conceived to justify it," McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), or unless the classification "'rests on grounds wholly irrelevant to the achievement of the State's objective,'" United States v. Hawkins, 811 F.2d at 216-17 (quoting McGowan, 366 U.S. at 425).
This analysis is not appropriate in this case. The Supreme Court has been more demanding of laws that disadvantage the indigent within the criminal justice system. See Maher v. Roe, 432 U.S. 464, 471 n.6, 53 L. Ed. 2d 484, 97 S. Ct. 2376 (1977); see generally Tribe, American Constitutional Law § 16-35 (2d ed. 1988); Nowak, Rotunda & Young, Constitutional Law 732 (2d ed. 1983). At stake here is not mere economic or social welfare regulations but deprivation of a man's liberty. The courts "will squint hard at any legislation that deprives an individual of his liberty - his right to remain free." Williams v. Illinois, 399 U.S. 235, 263, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970) (Harlan, J., concurring). Moreover, the indigent, though not a suspect class, have suffered unfair persecution. See Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Foote, Vagrancy-Type Law & Its Administration, 104 U.Pa.L.Rev. 603 (1956).
In Williams v. Illinois, supra, the Supreme Court held that confining a person beyond the statutory maximum sentence solely because of his inability to pay a fine and court costs violates equal protection. This practice was both ancient and widespread. 399 U.S. at 239-40. The Court noted that it served the legitimate purpose of enforcing obedience to the court's sentence. Id. at 240; id. at 264 (Harlan, J., concurring). Despite the burden that forbidding this practice would impose on the administration of criminal justice, id. at 245, the Court held that the constitutional obligation "to mitigate the disparate treatment of the indigent in the criminal process," id. at 241, required the states to seek other means of vindicating their interests.
In a concurring opinion, Justice Harlan reasoned that a due process analysis was more appropriate than an equal protection inquiry with its rigid tiers of scrutiny. Due process suggests a more flexible analysis, sensitive to the nature of the interests involved. Id. at 262. Justice Harlan further emphasized that where, as in Williams, the deprivation of liberty was at issue, the courts should show less than usual deference to legislative judgments. Id. at 263.
In Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), the Court reiterated its "sensitiv[ity] to the treatment of indigents in our criminal justice system." Id. at 664. The Court noted that due process and equal protection analyses converge in this context, and the Court adopted Justice Harlan's approach in Williams :
The issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as "the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose [and] the existence of alternative means for effectuating the purpose. . . ."
461 U.S. at 666-667 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)). The ultimate question "is whether consideration of a defendant's financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process." Bearden, 461 U.S. at 666 n.8. The court held that it was fundamentally unfair to revoke an offender's probation for his inability to pay a fine unless the sentencing court found alternatives to imprisonment inadequate.
In Bearden, Georgia attempted to justify revocation of probation with the argument that the indigent probationer would be tempted to commit crimes. Id. at 671. The Court acknowledged that there is a correlation between poverty and crime. Id. at 671 n.11. Nonetheless, a person cannot be punished solely for his poverty. Id. at 671; see Edwards v. California, 314 U.S. 160, 177, 86 L. Ed. 119, 62 S. Ct. 164 (1941). As a matter of constitutional belief, the presumption that the indigent will act criminally "is too precarious for a rule of law." See Papachristou, 405 U.S. at 171. Where the sentencing court had expressed its judgment that imprisonment was unnecessary for this offender by placing him on probation and where the probationer made bona fide efforts to pay his fine, revocation of probation for inability to pay was nothing more than a penalty on poverty.
From Bearden and Williams, we cull several principles. We must show more sensitivity to classifications that affect the indigent within the criminal justice system than to other non-suspect classifications. We will not accept any conceivable rational justification for disparate treatment of the indigent. Despite some empirical support for the proposition that the indigent are more likely to engage in criminal conduct than other segments of society, punishment cannot be based on the sole fact of indigency. Rather, we are commissioned to strike down treatment of the indigent that is fundamentally unfair. Finally, discriminatory legislation will not survive challenge if adequate alternatives to the same objective are available, even if those alternatives are less convenient.
However, in Bearden the court emphasized that its holding did not prohibit a sentencing court from considering a defendant's employment history and financial resources in setting a sentence. 461 U.S. at 670, 671. See also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 22, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). When viewed in the context of a pattern of criminality, the lack of employment and of legitimately obtained financial resources does indicate that the defendant is likely to commit further crimes, and the deprivation of liberty may be based upon it. See United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986) (employment history bears on finding of dangerousness under the Bail Reform Act). The courts do not have a constitutional mandate to eradicate all statutes that fall more heavily on the indigent. Ross v. Moffitt, 417 U.S. 600, 612, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974); Douglas v. California, 372 U.S. 353, 361, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963) (Harlan, J., dissenting).
Applying these principles, we conclude that the use of a defendant's financial background made by the Criminal Livelihood provision is not fundamentally unfair. As we have discussed, this provision descends from the Dangerous Special Offender statute. That statute had as its objective imposing enhanced punishment to incapacitate professional criminals who may lack the prior convictions necessary to bring them within recidivist statutes. H.Rep.No. 91-1549, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin. News 4007, 4038. These offenders make their living from crime; that fact indicates that their criminality is likely to continue. See Organized Crime Control: Hearings on S.30 and Related Proposals Before Subcomm. No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., p. 129 (1970) (statement of Sen. McClellan); id. at 172, 174 (Department of Justice comments). Thus, indigency is not the sole justification for the harsh treatment of offenders like Kerr and Larew under the guidelines. Rather, their pattern of criminality, a pattern upon which they depend for their livelihood, demonstrates a need for their incapacitation.
The requirement that they derive a substantial portion of their income from this pattern furthers the legitimate purpose of incapacitating professional criminals. Congress rationally may conclude that a person who depends upon criminality for a living and has no other vocation is more likely to continue his criminal ways than one for whom crime is an avocation. See United States v. Carbone, 793 F.2d 559, 563 (3d Cir. 1986) (Garth, Jr., dissenting) (Under the Bail Reform Act, "evidence of legitimate employment might bear upon [the defendant's] ability to earn a living apart from drug dealing"). The defendant who has an income to which crime does not contribute a substantial portion does not depend on crime; his prospects for returning to a legitimate lifestyle may be better.
Similarly, the alternative to the achievement of the Criminal Livelihood provision's legitimate aim is inadequate. Elimination of the "substantial portion" requirement would eliminate any wealth-based disparity; any person convicted of an offense committed as a part of a "pattern of criminal conduct" would be within the provision. Rightfully so, it may appear: after all, the past harm of the rich and poor offenders' conduct is the same, regardless of each offender's other income. However, this alternative misses the provision's focus: to prevent professional criminals from committing future offenses.
We recognize that it may be argued that the indigent person commits crimes of necessity; therefore, if offered job training and opportunities, he is likely to leave behind his criminal ways. On the other hand, the person who has a substantial legitimate income but who nonetheless engages in a pattern of criminal conduct has no excuse for his criminality. Since his incentive for crime is not understandable financial necessity but some more obscure quirk of his personality, rehabilitation is unlikely.
Our function is not to resolve these controversies of penological policy. As the Supreme Court stated while striking down a recoupment statute that discriminated against the indigent, "We do not inquire whether this statute is wise or desirable, or 'whether it is based on assumptions scientifically substantiated.' . . . Misguided laws may nonetheless be constitutional. . . . Our task, however, is not to weigh this statute's effectiveness but its constitutionality." James v. Strange, 407 U.S. 128, 133, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972) (citations omitted). Our conclusion might be different had defendants advised us of legislative facts demonstrating that the Criminal Livelihood provision's wealth-based distinction does not further any valid governmental objective. See Vance v. Bradley, 440 U.S. 93, 111, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979); New Jersey Citizen Action v. Edison Township, 797 F.2d 1250, 1257-1260 (3d Cir. 1986); P.Brest, Processes of Constitutional Decision-Making, Ch. 8 (1975). On this record, however, even looking through the hard "squint" of Williams and Bearden, we are persuaded that the Criminal Livelihood provision furthers a legitimate governmental purpose.
B. Due Process.
Defendants challenge on due process grounds the way in which the Criminal Livelihood provision restricts judicial discretion. Since the alleged evil of removing discretion is evident throughout the whole Sentencing Reform Act, we will discuss the guidelines as a whole.
The defendants' challenge forces us to consider and reject the court's due process ruling in Frank. While, of course, we give great weight and respect to a fellow judge's considered decision, we are not bound by it. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). And, as Justice Douglas wrote,
A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to uphold, not the gloss which his predecessors may have put on it. So he comes to formulate his own views, rejecting some earlier ones as false and embracing others.