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July 10, 2004

Severing Severability?

Assuming Blakely does invalidate part of the Federal Sentencing Guidelines (which right now is the consensus view despite Judge Easterbrook's game dissent in Booker), the next hard issue is the severability question: can you sever the unconstitutional parts of the guidelines and keep the rest of the system operative and legally binding or does the whole Guidelines Manual lose its legal force? Judge Cassell in Croxford holds, and the DOJ is arguing, that we cannot sever, while many other district courts have held that we can. Notably, Judge Posner in Booker explains that this issue ultimately "is a question of legislative intent," but then he punts the issue back to the district court.

In thinking about the severability issue, I've come to wonder about a few things:
(1) Which Congress's intent matters in answering the basic severability question? Do we look to the intent of the 1984 Congress that passed the Sentencing Reform Act? To the intent of the 1987 Congress that approved the initial Guidelines? To the collective intent of all the Congresses (Congri?) from 1988 through 2004 that continued to approve/authorize the current Guidelines and amendments thereto? And what effect, if any, would there be if the current Congress passed a resolution next week saying "We intended severability" or "We intended non-severability"? Finally, how do judges who do not even believe in considering legislative intent -- paging Justice Scalia -- start to answer the severability question when a statute is silent on the issue?

(2) Is the lawful application of the Guidelines even in cases with no upward adjustments or upward departures arguably just another severability question which calls for considering the intent of Congress? Judge Cassell in both Croxford and Thompson goes out of his way to stress that the Guidelines can still lawfully apply in some cases (those without upward adjustments requiring judicial fact-finding), and Judge Stewart in Montgomery makes the same point. Moreover, in Thompson, Judge Cassell quickly rejects the defendant's claim, based on concepts of equal protection, that because the federal guidelines are (according to Cassell) wholly unconstitutional in some case then they are inapplicable in all cases. But rather than having this claim sound in equal protection (which is a stretch), how about arguing severability and legislative intent. That is, could Thompson and others similarly situated assert that Congress would never have approved/accepted a sentencing scheme in which the Guidelines are completely inapplicable in some cases (i.e., those with even just one unenforceable upward adjustment), while fully binding in others (similar cases without one such adjustment)? After all, the whole purpose of the SRA was to create more uniform and consistent national sentencing law. In other words, if Judge Cassell (and DOJ) really think the applicability of the Guidelines is an all-or-nothing proposition for a particular defendant, doesn't the same logic support an argument that the Guidelines are an all-or-nothing proposition for all defendants?

If these queries make no sense, please blame fatigue.

July 10, 2004 at 02:31 AM | Permalink


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Tracked on Jul 10, 2004 9:13:55 PM


Blakely summons me to recall the myriad pre-Mistretta challenges, especially when the 16 Judges of the Southern District of Florida convened en banc in the ceremonial courtroom to consider argument on the constitutionality of the Guidelines (i served as lead counsel, representing amicus, NACDL).

11th Cir Judge Stanley Marcus, then a district judge, wrote a 37 page opinion for the court, declaring the G/Ls unconstitutional. US v. Bogle, 689 F.Supp. 1121 (SD FL 1988).

Severability of the "Guidelines" portion of the SRA from the 'No parole" and reduction in "good time credits" was addressed later, 693 F.Sup. 1102, 1110, (holding these provisions severable; stay denied 855 F.2d 707 (11th Cir. 1988)).

During this period, you will recall that some judges imposed "alternate" guideline and non-guideline sentences, and severability in these cases was a nightmare for the BOP (what a shame) in executing the sentences.

DOJ had to develop a uniform policy for these cases and did so in a Memo (Feb 1, 1989)(day agter Mistretta?) reprinted at McFadden, Clarke & Staniels, Federal Sentencing Manual (Matthew Bender-- at sec. 2.02[2], citing Bogle

SHould the district courts or Courts of Appeals conevene en banc proceedings in the absence of specific direction from the big guys? Alternate sentences (not my preference)

Severance of the unconstituional "parts" of the Guidelines is not, in my, well-advised.

Ultimately, i envision a post-Blakely paradigm of federal sentencing that should be "guided" by the Guidelines on the offense level only and downward adj/dep where burden is allocated to defendant.

What was so wrong with the FEDERAL COURTS STUDY COMMISSION anyway?

benson weintraub
visiting prof of law
hofstra law school [and federal sentencing litigator]

Posted by: Benson Weintraub | Jul 10, 2004 4:29:04 PM

This may be a little late, but I'm not sure I see the unconstitutionality of the guidelines as a whole at all, and thus don't see a severability problem. As I recollect, in general, neither the Sentencing Reform Act nor the initial guidelines set out what the burden of proof applied to enhancements and departures was, and I believe they were silent about any right to a jury trial. In short, while it may be cumbersome to administer, I don't believe the text of the relevant statutes or guidelines is incompatible with Blakely at all. In a given case, because the government never pled an enhancement, it may be unconstitutional to apply that enhancement. But once the government does plead such increases initially, there is little in the guidelines inconsistent with the right to jury trial and to proof beyond a reasonable doubt. Indeed, the question whether the guidelines are unconstitutional even when they can be applied shows just this. So we shouln't even be discussing severability, because the guidelines are constitutional. Only some procedures by which they have been applied are not.

Posted by: David in NY | Jul 16, 2004 2:46:24 PM

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Posted by: laptop battery | Oct 14, 2008 5:18:46 AM

DOJ had to develop a uniform policy for these cases and did so in a Memo (Feb 1, 1989)(day agter Mistretta?) reprinted at McFadden, Clarke & Staniels, Federal Sentencing Manual (Matthew Bender-- at sec. 2.02[2], citing Bogle

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 2:58:42 AM

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