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September 2, 2004

The SG and Severability

As with the arguments that Blakely does not apply to the Federal Sentencing Guidelines, there is so much to say (and likely to be so many coming posts) about the argument that the "Guidelines as a whole are inapplicable in cases in which the Constitution would override the Guidelines' requirement that the district court find a sentence-enhancing fact." I have not even had a chance to read closely the specifics of the SG's argument on this issue, but two quick observations already seem essential:

1. On page 67 of the SG's brief, the government seems not only to concede, but also to contend, that the Sentencing Reform Act of 1984 (SRA) is severable. Specifically, the government explains in detail that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is held applicable to the federal guidelines. Thus, the real severability issue in Booker and Fanfan is apparently not whether some aspects of the federal sentencing system is severability, but rather only which aspects are severable. (Arguably, the emphasis in the Senators brief on the SRA as a "comprehensive plan" might be in tension with the SG's "pro-severability" claims, but I will leave it to others for now to debate this fine point.)

2. From a very quick read, it seems that the SG is completely ducking the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in cases that do not raise any "Blakely factors." As noted here and here, at least two federal judges are on record (Judge Gertner in Meuffleman and Judge Presnell in King) as saying that, if the guidelines are wholly inapplicable in some federal cases, then they are wholly inapplicable in all federal cases. I was hoping to see the SG's brief address this critically important issue head on.

September 2, 2004 at 09:07 AM | Permalink


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I think the SG got the severability analysis right. The problem is that the Blakely majority are formalists, and on formalist grounds there simply is no severability analysis that works. The SG made the best of a bad problem.

To run through the possibilities briefly: I'm certain that District Judges who've empaneled sentencing juries will be overturned. Congress never intended sentencing factors to be decided by juries, and this is not a mechanism the judiciary can legislate on its own. The SG argues this part of the case extremely persuasively.

The SG also argues that it is unworkable to charge all guideline sentencing factors in every indictment. The guidelines, as designed, just don't lend themselves to that purpose, and weren't meant to. Here also, the SG is extremely persuasive.

Having reached this point, the SG is in a quandary. On formalist grounds, I think it's pretty hard to deny that if Blakely applies in any case, it applies in all cases. Whatever one may think about the guidelines in practice, they weren't meant to be used only sporadically. Congress would not have enacted the SRA if it had known they would be inoperative in so many cases.

But if the Court tosses out the guidelines competely, what do we have? The SRA didn't just create the Sentencing Commission; it also repealed the statutes authorizing parole. Now, although the Court can declare a statute unconstitutional, it can't "unrepeal" a statute. So, while the Court could declare the guidelines unconstitutional, it could not reinstate the pre-SRA system.

For this reason, the SG's recommendation (in the event Blakely applies to the Federal system) is the only pragmatic one: to declare the guidelines unconstitutional *as applied* to Booker and Fanfan. This, at least, leaves in place a system that is workable, albeit one that would result in a temporary "sentencing windfall" for some defendants until Congress or the USSC stepped in to create a new system.

Posted by: Marc Shepherd | Sep 2, 2004 1:12:57 PM

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