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July 27, 2004

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?

July 27, 2004 at 01:48 AM | Permalink


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If the Government argues -- and the Court agrees -- that the Guidelines are non-severable, can the Court impose a term of supervised release? Isn't SR a creature of the 1984 Act, that, like the Guidelines, has simply ceased to exist under the non-severable approach?

Posted by: defensecounsel | Jul 27, 2004 9:05:01 AM

I am a law professor at Fordham. I agree with your comment on the impact of strong forms of the non-severability argument. If the government files an indictment, original or superceder, with guidelines oriented sentencing facts, defense counsel file should consider a motion to strike that material as prejudicial surplusage, and also consider a motion to dismiss the indictment, on a theory of improper presentation to the Grand Jury. If the FSG, and perhaps the SRA, are unconstitutional, there is no basis for putting those facts in front of the grand jury, or for prosecuting the case with a charging instrument that includes prejudicial allegations the government is not required to prove.
The pretrial motions would work as a vehicle for getting a ruling from the judge on the constitutional issues early in the case, permitting more informed decision making. The motions also make substantial legal arguments. Elements not only have to be proven to a petit jury BRD, they also have to be pled and proven in the grand jury. Although many lawyers and trial judges may take the grand jury for granted, its role is also challenged and changed by Blakely.
Blakely's impact on the grand jury has yet to develop and lawyers need to make timely 12b3 motions to develop the area.
It is hard to know just how the dynamics will develop, but it will certainly be a different world if grand juries are hearing detailed sentencing presentations and the government regularly commits itself to very detailed charges earlier in the process.

Posted by: Ian Weinstein | Jul 27, 2004 9:53:36 AM

I agree with you -- the parole commission better start gearing up. The commission hasn't sail into the sunset as contemplated by the SRA because they lobbied and got authority over DC inmate parole and revocations.

But, what about good time? High time we get back to one-third reductions for good behavior. Seems to me that parole and good time were the counter-balances to judges' unfettered discretion and we can't have one without the other two.


Posted by: richard crane | Jul 28, 2004 8:08:02 PM

My husband recieved a 28 year sentence for stealing a television and a shot gun from a unoccupied mobile home. The courts made him serve 7 years in state before starting his fedeal sentence of 21 years.(actual time served 5 years there with gain time) Im sure you thinking there must be more to it than that, but there isnt, the feds stepped in because the shotgun was unregistered. He was 20 years old, he and another kid used it to shoot cans in there rural backyard.They never committed a crime with it. Joe pawned the tv for gas money, leaving his thumb print. They came to his house he admitted the crime and gave them the gun. He has been incarcerated 10 years now and I am always looking for information that may help him, thankyou for such an informative website.
susan morin (wife of joseph morin )

Posted by: Susan Morin | Jun 19, 2005 12:57:17 PM

I am looking for some insight as to what I can do. My son has been in prison for 25 years now. He had his first release date in April 1991, it was extended 5 years at the judges request, so his next release date was for July 1996. Since that time it has been put off for no apparent reason, but for the fact that they can. He was 19 when he first went in for robbery, but then he escaped from their brand new escape proof jail not once but 3 times. He embarrased the system. He was given a total of 64 years. I know he was very young and cockey and the news papers named him a young Houdni but he does not deserve to spend 25 yeads for it. He is under the old prison laws, where parole is his only way out. As you know there are very few inmates left and when they are all released what do the parole commissioners do? The last hearing was Jan. 8,2006 and the put him off for 2 more years and I don't know why. Their commit was Statute 947-18. I am having a hard time finding out what that means, can you help in any way, PLEASE. If you want you can look him up. His name is John E. Sullivan #091045. Thank you so much.
Charlotte MacDougall a desperate mother.

Posted by: Charlotte MacDougall | Mar 27, 2006 7:36:11 PM

I don't know what a URL is, so I didn't fill that out. I am trying to find out the hopeful possibility of Early Release Good Time Bill, and the Early Release Parole, and the non-violent sentencing. There is a lot of "rumors" and little hope. The latest information I found was dated 2002. I am in total support for these bills to be passed, but do not know how to "get my vote counted." Is this a 'live' place to get answers? Thank you, Jackie Holmes (voting name Jacquelyn Holmes)

Posted by: Jacquelyn Holmes | Jun 8, 2006 6:05:49 AM

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Posted by: laptop battery | Oct 14, 2008 5:22:37 AM

But, what about good time? High time we get back to one-third reductions for good behavior. Seems to me that parole and good time were the counter-balances to judges' unfettered discretion and we can't have one without the other two.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:34:05 AM

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