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September 11, 2004

USSC's views about severability??

After many brief-related posts on the applicability of Blakely to the federal sentencing guidelines (see, e.g., posts here and here and here; see also Hammoud post here), this weekend I am starting to focus on the Booker and Fanfan briefs' approach to the even tougher issue of severability.

Though a lot more severability analysis will follow in this space (and follow-up my preliminary discussion here), my first observation here concerns the disconcerting absence of any severability analysis or discussion in the US Sentencing Commission's brief. The USSC's brief stresses it is an "independent" agency which spends all its time and energy analyzing sentencing decisions and data (cf. Jason Hernandez's effective post examining the USSC's brief). Given its own claims about its institutional role and work, the USSC should have the most informed and the most thoughtful perspective on the guidelines' ability to operate without judicial fact-finding of sentence enhancing facts. At the very least, one would hope and expect the USSC could figure out, and would make public, roughly how many federal sentences turn on judicial fact-finding of sentence enhancing facts. (Recall that, as detailed here, at least one Commissioner has publically opined that ''eighty percent of the cases in the whole country are unaffected" by Blakely.)

Moreover, the Solicitor General's brief asserts that "the severability analysis must take into account the intent of the Sentencing Commission." SG Brief at 45-46. If this is so, shouldn't we hear the intent of the USSC straight from the USSC? The SG's brief makes a number of representations about the Commission's intent, but remember that the SG is a party in Booker and Fanfan with a necessarily biased perspective on such issues.

My guess is, based in part on this report from Tony Mauro, that the USSC could not internally reach a consensus view on the tough issue of severability (or, dare I suggest the possibility, perhaps the USSC is working on a brief in support of the respondents on this issue). But, whatever the realities surrounding the USSC's legal (non)position on severability, I think the USSC undermines its own description of its institutional role and work if it does not soon disseminate at least some preliminary data about how many federal sentences in fact turn on judicial fact-finding of sentence enhancing facts.

September 11, 2004 at 06:54 PM | Permalink


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