Other institutions, rulings and remedies

I find modern sentencing reform fascinating in part because of the institutional dialogues that can and will take place, especially when sentencing reform is being done well. Notably, Justice Kennedy spoke to this issue in his intriguing Blakely dissent. (And, pardon the plug, I've written at some length about these issues in a number of articles. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Criminal Law Bulletin 627 (2001); Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000); A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).)

But, disturbingly, at perhaps the most important time for such a dialogue in the federal system, we are only hearing from judges. It's now a full week since Blakely came down, and we've not heard a single official word from the U.S. Sentencing Commission or the U.S. Department of Justice. Though exactly what these other branches should say is quite debatable (and perhaps is being hotly debated at this moment), I really do not think silence is the right choice. At the very least, the USSC or the DOJ could (and should?) encourage judges to hold off on rulings or annouce alternative sentences in order to keep the short-term Blakely damage under control. Or, more boldly, they might assert that, until the Supreme Court rules otherwise, an administrative guideline system is arguably different in a constitutional sense than a statutory guideline system. Or, they might even (tentatively?) concede the constitutional problems and suggest a preferred remedy.

All the substantive questions here are hard and contestable; but my main point is that there should be others addressing these issues right now besides just judges. Of course, eventually, every instititution will have some say, but there is no time like the present to get going with the "constructive discourse" Justice Kennedy advocates.