A few weeks ago, in United State v. Matchett, the Eleventh Circuit rejected a void for vagueness challenge to the career offender Sentencing Guideline, U.S.S.G. § 4B1.2(a)(2), which contains language that is identical to statutory language in 18 U.S.C. § 924(e)(2)(B). The U.S. Supreme Court found that statutory language to be unconstitutionally vague at the end of last Term in Johnson v. United States. Although acknowledging the guideline is identical to the statute, the Eleventh Circuit held that the void for vagueness doctrine does not apply to sentencing guidelines, because the guidelines are advisory and therefore a judge need not follow them in imposing sentence. Whether the decision is correct is debatable. Other circuits have come to the opposite conclusion.

Judge Pryor wrote the opinion for the Eleventh Circuit. That is significant because he is also a member of the Sentencing Commission. (Matchett was not Pryor’s first opinion on this guideline. He also wrote the opinion in In re Rivero, which expressed doubts that the vagueness doctrine applies to sentencing guidelines, but avoided deciding that question by saying that Johnson is not retroactive, thereby arguably creating another split, as Leah Litman has noted here.

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.

In Mistretta v. United States, the Supreme Court said that serving on the Sentencing Commission should not lead to widespread recusal because a judge’s participation in the promulgation of guidelines would “not affect their . . . ability impartially to adjudicate sentencing issues.” But as Ron Krotoszynski has pointed out, the Mistretta Court “did not consider, and therefore did not address, whether Sentencing Commissioners would consider the legality of their own work product.” Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 Wm. & Mary L. Rev. 417, 428 (1997).

None of this is to say that Judge Pryor was biased in his decision. But the practice creates a sense of unease and warrants questioning.