Is parole back? Appeals gone?

It is easy to accept the basic notion that, in the words of the Senate's "Concurrent Resolution," the federal sentencing guidelines should be applied as "a cohesive and integrated whole, and not in a piecemeal fashion" (background here). But decisions in US v. Mueffleman (background here) and US v. King (background here) are starting to highlight some of the potentially very broad consequences of a conclusion of non-severability. Here are some concerns and/or questions that I have:

1. As I first argued here, the logic of non-severability suggests that the guidelines cannot apply in any case, whether on not the case involves "Blakely factors." This is what Judge Presnell emphatically holds in King and Judge Gertner strongly suggests in Mueffleman. But if the guidelines are wholly inapplicable and of no binding legal force in all cases (i.e., just a big book of judicial recommendations), what then supports prosecutors' filing of superceding indictments alleging "guideline facts"? In a world in which the guidelines have no legal force, aren't such additional facts in an indictment (prejudicial) "surplusage"?

2. Judge Gertner concludes in Mueffleman that she must declare the "Guidelines unconstitutional in their entirety," because they "were intended to cohere as a single regime," and thus she feels "obliged to sentence these defendants according to the pre-1984 system." Does this mean that parole is back in the federal system? Judge Gertner implies as much in her opinion (see p. 38), and the use of the term "indeterminate sentencing" by Judges Gertner and Presnell and others recalls a time when judges could not determine exact sentences because parole boards established actual release dates. (Perhaps these judges mean just to refer to discretionary sentencing, rather than indeterminate sentencing.) Notably, the US Parole Commission is still in business, and perhaps someone should warn the folks at the USPC that they might soon need to hire a lot of new staff.

3. Judge Gertner suggests that, despite her broad non-severability conclusion, perhaps the Sentencing Reform Act's provision for appellate review remains standing. But what legally supports severing this one piece of a system that has been deemed entirely non-severable in every other respect? Moreover, what is going to be the nature of any preserved right of appeal? As Kate Stith and Jose Cabranes have noted, discretionary sentencing decisions before the SRA were "virtually unreviewable on appeal." 91 Nw. U. L. Rev. 1247, 1251-52 (1997). Critically, this question is not merely academic for defendant Charles Matthew Parson, who was just sentenced to 28 months by Judge Presnell even though the "applicable" guidelines range was 21-27 months. Were the guidelines still in force, Judge Presnell would have had to justify an upward departure and that departure decision would be appealable by Parson. But, since we are back to a pre-SRA world, it would seem Parson has no real appellate recourse.

4. Finally, where and how does waiver fit into all this? The Blakely court stressed the prospect of defendants waiving "Blakely rights," while the Eighth Circuit in Mooney suggested defendants could "consent to a Guidelines sentence." But it is hard to understand how guidelines deemed non-severable and therefore of no binding legal force can perhaps take on legal force if the defendant "waives" or "consents." I can understand why a particular defendant — such as Charles Matthew Parson — would want to "consent" to a Guidelines sentence. But can a defendant's desire to have the guidelines in force supercede a court's conclusion that the guideline scheme is non-severable and thus no longer legally binding?