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August 25, 2004

More details about the USSC's briefing plan

Tony Mauro's piece in Legal Times today (available here with registration) confirms the report that the US Sentencing Commission will be filing its own brief asserting the federal guidelines' constitutionality in Booker and Fanfan. According to the article, the solicitor general's office at first balked at the commission's desire to file its own brief, but ultimately recognized that the USSC is an independent judicial branch agency. However, "the commission's request to the solicitor general's office for part its 30-minute argument time was denied." Here are some of the other interesting points from the very interesting article:

The commission's brief is also expected to sidestep the issue of severability -- whether the entire federal sentencing system must fall if the judicial fact-finding aspects are ruled unconstitutional. Commissioners are apparently divided on what position to take.

In its own filings, the solicitor general's office has said the guidelines are not severable, though in a recent reply brief, it seemed to offer alternatives that would preserve the guidelines in some instances.

I am a bit disappointed that the USSC's planned brief won't help the Supreme Court work through the tough severability issues, though I guess I can understand the USSC's inability to internally resolve this intricate issue in the short timeframes created by these expedited cases. And I am surprised by the report that the SG, in "a recent reply brief" may be giving ground on its non-severability claims. Does anyone have a copy of this brief to share?

UPDATE: The "reply brief" mentioned above may have been just a reference to the SG's cert. reply brief in Booker and Fanfan, where the SG suggested that the full range of severability questions would be placed before the High Court through those cases. In addition, I think everyone might be able to get access to the Legal Times article here.

August 25, 2004 at 10:33 PM | Permalink


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