Another fascinating read from a District Court

The Vera Institute's report, "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," provides a stunning view of the post-Blakely world from a system-wide perspective. In contrast, US District Judge Gerald Lynch's recent opinion in US v. Emmenegger (details here) provides a stunning view of the post-Blakely world from a case-specific perspective.

Among other virtues, Emmenegger provides the most thorough and thoughtful iteration of the impact of alternative sentencing schemes in the wake of Blakely, while also providing a mini-primer on relevant sentencing considerations along the way. Interestingly, Judge Lynch's opinion exhibits a hint of grumpiness about the Second Circuit's failure to provide guidance to its district courts and also takes a swipe a Blakely's formalism. And this is all in service to reaching the (interesting but contestable) conclusion that "sentencing guideline systems seem more analogous to the kinds of fact-finding that judges historically performed under discretionary sentencing regimes, and less comparable to the creation of innumerable degrees of separate crimes."

Though Emmenegger is full of interesting facets — including Judge Lynch's conclusion that he would impose a sentence of 33 months under the guidelines, but a sentence of only 24 months if the guideline were not legally binding — I am always drawn to court's severability analysis. And, once again, I feel like we are left with more questions than answers (compare here).

Judge Lynch states clearly his view that if upward enhancements based on judicial fact-finding are unconstitutional, then "the entire structure of the Guidelines must fall." Slip op. at 39. And yet, because Judge Lynch treats 18 USC 3553(a) as if it were still legally binding even if the guidelines were wholly unconstitutional, see slip op. at 21, it seems as though he believes the SRA (or at least a key portion thereof) would remain in force even as the Guidelines fall. But Judge Lynch never explains why part of a statute designed to create binding Guidelines is severable from the constitutionally infirm "entire structure" that this statute authorized. He also never indicates whether other parts of the statute — e.g., the elimination of parole, the creation of suprevised release, the authorization of appellate review — stand or fall in light of his severability analysis. In addition, Judge Lynch speaks of the intention of the Sentencing Commission in his severability anlysis, see Slip op. at 39, though I am left to wonder why a judicial branch agency's intent is directly relevant to a severability question considered a matter of "legislative intent." (Perhaps we could claim that Congress adopts the Commission's intent (or vice versa), but the disgreements between Congress and the USSC over the PROTECT Act highlight that these bodies might often have quite distinct intentions.)

Of course, since the severability analysis is all dicta, perhaps I cannot rightly fault Judge Lynch for not providing a fuller analysis. And yet, this is important dicta since Judge Lynch concludes that "the Court will in all future cases announce its alternative view of an appropriate sentence if the Court has discretion to impose sentence within the statutory range." And this decision to announce alternative sentences is itself intriguing in that Judge Lynch assails the idea of employing "sentencing-jury trials" because they are "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition." Slip op. at 40. And yet, I think the exact same charge could be leveled against the announcement of alternative sentences, since such a practice is at least arguably "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition."