Ladies and Gentleman, stop your engines...

I find it a bit humorous that the same state that brings us the Indy 500, called "the greatest spectacle in racing," now has a US Attorney urging the federal sentencing system to shift into neutral until the Supreme Court rules on Blakely's applicability in the federal system.

Marcia Oddi over at the Indiana Law Blog effectively provides the basic details here of the "Motion by the United States for en banc Determination by the District Court to Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines." And here is the link to the motion itself and its supporting memorandum.

Here are a few highlights from US Attorney Joseph Van Bokkelen's fascinating stay motion:

Federal sentencing has reached a crisis. To borrow Judge Easterbrook’s word from his Booker dissent, the entire federal criminal process is "discombobulated.”... There are any number of sentencings currently pending in the Northern District of Indiana. The government respectfully requests that all such sentencings be stayed pending the apparent expedited resolution by the Court.

The government notes that in the Motion to Expedite before the Supreme Court, reference is made to the fact that the District Court for the Southern District of Ohio has apparently entered a 30 day stay on all sentencings in cases that could be affected by Blakely. A similar order could be fashioned in this district, i.e. an initial 30 day stay to be then reviewed to assess developments in the Supreme Court. The government acknowledges that a request for an en banc order is rare and may indeed be the first such request in this district. Other districts have employed an en banc procedure to address issues of fundamental importance and commonality in cases pending before its district judges....

The government respectfully suggests that all participants in the criminal justice process and the important interests of the public in some finality to that process will be well served by staying all sentencings until this issue is resolved. [FOOTNOTE 6: The government recognizes that if the Supreme Court does not act reasonably soon, cases will have to proceed. It appears however that the Court may act very soon and that possibly by this fall there will be clear guidance. This court could fashion an order, for example, staying sentencings for a fixed period to be re-evaluated at the end of that period for any developments.] There is just too much uncertainty to proceed at this time. Proceeding to sentencing may result in different judges reaching different decisions, thereby treating defendants differently. The Supreme Court’s decision might require any number of sentencings to be redone, thereby straining judicial, governmental and defense resources. Everyone will be well served by waiting until we have clear guidance from the Supreme Court. At that time sentencings can proceed with certainty and finality.

Commentary: Like everything else in this crazy Blakely world, this motion is very sensible and very questionable. The government makes a sound case for putting everything on hold, but can all sentencings wait months for a Supreme Court decision? The motion suggests "an initial 30 day stay," but we now already know that it will be more than 60 days before the Supreme Court even hears Fanfan and Blakely. And an actual ruling by the Court likely will take another month or more. (Recall that the Supreme Court just last term returned early to hear argument in early September concerning challenges to new campaign finance laws, but the Court was not able to hand down an opinion until more than three months later in mid December.)

For defendants indisputably facing a prison sentence of many years, a sentencing delay of several months may not be a big deal. But, according to these USSC data, dozens of defendants in the Northern District of Indiana in a typical year receive only probation or a sentence of less than a year. Placing these folks in sentencing limbo for many months seems potentially problematic (although I suppose every sentence is in some form of limbo no matter how courts proceed these days).

Further, the Blakely decision has not only raised questions about sentencing procedures, but also questions about indictment and trial practices. It is unclear from the motion whether the US Attorney also contemplates putting all criminal cases on hold. The arguments for staying sentences also would support staying all trials, too. Is this what the US Attorney really wants? Has this plan been blessed by Main Justice? Might it be blessed by defendants and defense counsel? So many questions, so few answers in this post-Blakely world.