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August 3, 2004

Judicial economy?

Though it is hard to comment at length about what the Fourth Circuit is doing until we see the en banc court's opinions in US v. Hammoud (details here), I am bemused by the order which, after instructing district courts "to continue sentencing defendants in accordance with the guidelines," then recommends that district courts "also announce, at the time of sentencing, a sentence pursuant to 18 USC 3553(a), treating the guidelines as advisory only." This recommendation is purportedly in "the interest of judicial economy."

Though I am hardly an expert on economics (or even law and economics), I am pretty sure this recommendation will not in fact be very economical. First, it suggests that district judges take the time to impose — and, I would hope, justify on the record — two sentences in every case from now until the Supreme Court rules. Though this might not be a complete doubling of sentencing efforts in the short-term, it does entail more work (perhaps a lot more work) for district judges than just imposing a guideline sentence. And this extra work will be wasted work if the Supreme Court (somehow) finds a way to sustain the federal guidelines even after Blakely.

I suppose the idea is that this extra work will be worthwhile if the Supreme Court invalidates the federal guidelines. However, that notion is necessarily premised on the highly debatable assumption that if the federal guidelines are found unconstitutional, then the remedy will be to impose sentences "pursuant to 18 USC 3553(a), treating the guidelines as advisory only." Though a number of courts have declared the guidelines unconstitutional as a whole and in turn only advisory, I believe only the now-vacated Sixth Circuit panel opinion in Montgomery has held that 18 USC 3553(a) remains legally operative and binding after a finding that the guidelines are unconstitutional. Only if the Supreme Court slices up the severability question precisely this way — in other words, only if the Supreme Court agrees with the now-vacated Sixth Circuit panel opinion in Montgomery, an opinion that the active judges of the Sixth Circuit clearly felt should not stand — will the "recommended" second sentence be of any value whatsoever.

Moreover, even if the Supreme Court does slice up the severability question precisely this way, I presume all the sentences imposed in the Fourth Circuit pursuant to the order in US v. Hammoud will have to be re-done. Technically, if the Supreme Court find the guidelines unconstitutional, all the sentences imposed with the Fourth Circuit under the old guidelines will be improper and new sentences will have to be imposed. Perhaps someone believes that, at that point, the "recommended" second sentence can be readily substituted for the improper guideline sentence. But, if I am defense counsel (or even a prosecutor) displeased with the previously announced second sentence, I would argue that a whole new sentencing proceeding is now required in order to properly impose a new sentence under the (now clarified) new sentencing rules.

In short, if the guidelines are upheld, the announcement of a second sentence is pointless; if the guidelines are struck down, the announcement of a second sentence is highly unlikely to eliminate or reduce the need for a sentencing "redo" in every case.

August 3, 2004 at 02:05 AM | Permalink

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