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July 27, 2004

Lawlessness versus leniency: the real severability debate

As noted before here, and as highlighted by Judge Gertner in her Meuffleman opinion, lower courts appear to be "evenly split" on the question of severability. See Meuffleman, Slip op. at pp. 33-34 & n.35. This split is both fascinating and not surprising because the severability decision, at its core, requires judges to make a very difficult judgment call about whether Congress would prefer lawlessness or leniency in the wake of Blakely.

As suggested recently here and here, taking the conclusion of non-severability to its logical extreme could return federal sentencing to the "lawless" state it was in before the 1984 passage of the Sentencing Reform Act. But, as Judge Presnell suggests in his Parson decision (background here), applying the guidelines in a "piecemeal fashion" after a conclusion of severability might seem to require judges to impose unduly lenient sentences.

Understanding the severability debate in this way helps explain the positions of some of the players. Defenders are generally arguing for severability, and they have the (perceived-to-be-liberal) Ninth Circuit on their side. DOJ is arguing for non-severability since it would apparently prefer a lawless world to a lenient one (at least in those cases with Blakely factors), and Judges Cassell and Presnell seem to be in this camp.

Of course, the fundamental questions is what would Congress want. But this question is so hard to answer because, though the Congress that passed the SRA was primarily focused on remedying lawlessness, subsequent Congresses have shown a particular concern about perceived leniency. (I have written more fully about these themes, in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).)

Ultimately, I believe a sophisticated and nuanced severability analysis can avoid an extreme choice between the dueling evils of lawlessness and undue leniency. Specifically, I think the long-neglected discretionary authority of judges to upward depart from base offense levels provides a mechanism which could be utilized right now to avoid either extreme of lawlessness or undue leniency. I will have to be off-line most of this afternoon, but I hope to explain this point more late tonight.

July 27, 2004 at 01:42 PM | Permalink


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Interesting dichotomy, Prof. Berman, and I certainly agree with it. Another apt dichotomy may be (perhaps) the Judicial "Activist" /"Preservist" (for lack of a better term) one. In other words, are there judges who might otherwise be less lenient who opt for the lenient solution because it requires less judicial activism -- saying a sentencing factor is affected by Blakely rather than striking down the whole system. Conversely, are there judges who think that the Guidelines are too harsh but opt for the lawlessness choice in order to give themselves back power they consider unfairly stripped away by the Guidelines. For example, a court of appeals declaring the Guidelines unconstitutional in totality because of their distaste for the power reserved to prosecutors, even though they know that some district judges will use that discretion to sentence more harshly (8th or 6th Circuits' panel decisions, e.g.). In this age of anti-judicial "activism" (whatever that means), I think this dichotomy might explain some of the low sentence opinions by harsher sentencing judges.

Posted by: District Clerk Battling Blakely | Jul 27, 2004 2:29:00 PM

Professor, nice blog. Encountered your blog via typepad.com

Posted by: SV | Jul 27, 2004 3:55:03 PM

For what its worth I don't think that it is Lawlessness v. Leniency.

I agree that the Governments position if Blakely applies is lawlessness/chaos/exactly what the guidelines were trying to replace. I disagree, and feel that it does a great disservice to the debate for the public to believe, that the alternative is leniency.

There are a great number of defendants that have pled to informations and admitted in Rule 11s the facts for the enhancements. I have a number of clients which are going to receive the same sentences that they would have without Blakely.

As I argued in Zompa, the enhancements still apply. We are only dealing with a higher burden of proof (ok and different fact finder). Once we get past these cases "in the crack" as Judge Singal put it the only defendants who will benefit are those where the Government could not prove these allegations, BRD, in the first place. Putting the Government to it proper burden is not leniency. I think that the public perception of the issue (and the likely response by Congress) is and will be continued to be skewed by calling or labeling the decisions that sever as lenient or "soft on crime".

I don't know, maybe lawlessness v. fairness? But that is also too skewed.

Just my 2 cents.

Posted by: Robert J. Ruffner | Jul 27, 2004 8:18:02 PM

If the split is as Professor Berman describes it, isn't some long-term thinking by those favoring leniency in order?

It seems to me that winning the severability argument now may provide only a short-term benefit but create long-term risk. The benefit of severability is obvious for defendants who were convicted pre-Blakely but sentenced post-Blakely because there may be double jeopardy considerations to trying to get a new jury proceeding for upward adjustments.

But for those new or pending cases coming down the pike, the mere fact that a jury may have to decide upward adjustments beyond a reasonable doubt is certainly better than the current system but by no means does it spell the end of tragically unfair sentences; jury findings will still tie judge's hands (unless, of course, juries are told why they are making sentencing findings, in which case jury nullification might temper the harshness but that's a discussion for another day).

It's clear that any overall result short of distinguishing Blakely will likely be the subject of a legislative attempt to fix the federal guideliens. A judicial approach that artificially lowers sentences in the short term (severability), however, is more likely to spur congressional action than one (non-severability) that simply allows judges to impose what they believe are appropriate sentences.

For those favoring leniency, it might be best in the long run if the guidelines are ultimately found to be non-severable. Perhaps years of highly-public criticism of the guidelines, combined with reports that the sky isn't falling--because judges are now being "guided" (although not controlled) by the guidelines--may take some of the steam out of calls for drastic fixes. Of course, if a particular case calls for an argument that the guidelines are severable, that must control. Rather than fight the government on this as a general matter, though, the defense bar might be better served in the long run by agreeing with it

Posted by: Alex E. | Jul 28, 2004 12:15:18 PM

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Posted by: laptop battery | Oct 14, 2008 5:21:49 AM

I agree that the Governments position if Blakely applies is lawlessness/chaos/exactly what the guidelines were trying to replace.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:29:20 AM

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