Sense and Severability

As I have spotlighted before (e.g., here and here and here), the so-called severability question is extremely important and extremely challenging after one draws the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional. With the exception of the Fifth Circuit and a few district courts, there is a near consensus that parts of the federal guidelines are unconstitutional. However, there is a multi-directional split on the tough severability questions which follow that conclusion.

Recall that the Seventh Circuit in Booker punted the severability question back to the district court, although essentially ruled that the guidelines were still operative and binding in cases without "Blakely" factors (background here). The Ninth Circuit in Ameline held that the guidelines were severable (background here), while the Eighth Circuit said in Mooney that they were not (background here). The Sixth Circuit's now-vacated opinion in Montgomery seemed to sever severability in its own distinctive way (background here), and the district courts have been both figuratively and literally all over the map.

Though not producing one answer, all these decisions in my view do share one attribute: the severability analysis in all these cases seems hurried and not sufficiently attentive to all the nuances in play. The Ameline court presented the most thorough severability discussion, but it still did not cover all the issues important in this analysis. Coincidentally, landing in my e-mail in-box today was a fantastic brief addressing severability issues submitted in court yesterday by the Federal Defender Services of Wisconsin. In a cover note, the brief is described as addressing "an interesting aspect of the severability question: where do we focus the severability analysis -- on the guidelines or on the SRA? And if the focus should properly be on the SRA, what happens next? Is supervised release gone? Does parole come back into play?"

The cover note alone piqued my interest, and reading the brief was a true eye-opener. Nearly every section raises an important and nuanced point about how complicated severability is in this setting, and the brief closes with this blockbuster paragraph:

If the SRA itself is non-severable, then sentencing really does change dramatically. Determinate sentences are gone; parole is back. Supervised release is no more. A variety of other innovations under the SRA disappear. Sentencing appeals nearly disappear after two decades, with the usual appellate jurisdiction rolled back. The government once more shares Rule 35(b) with the defense. It is 1983 again.

I think this brief is an absolute must-read for everyone thinking about these severability questions:
Download blakely_severability_brief.pdf