Reflections on the arguments on severability

Ultimately, the real action in Monday's argument concerned severability because the five Justices in the Blakely majority essentially decided Blakely's applicability to the federal system when they decided Blakely. Everyone understood back in June the impact of the ruling in Blakely for the federal system, and Fanfan's lawyer Rosemary Scapicchio astutely started her argument by reminding the Court that the government argued back in Blakely that if the Washington guidelines fell then so would the federal guidelines. (Indeed, Scapicchio came very close to accusing the SG of flip-flopping.)

On the issue of severability, Tom Goldstein's post here and a report from Mark Stancil here provide some helpful (though distinctive) head-counting of the Justices' apparent views on severability. What fundamentally makes this issue so hard is that the two primary options facing the Court both seem problematic: the SG's argument for advisory guidelines, as Justice O'Connor observed, seems to fly directly in the face of Congress's obvious interest in creating binding sentencing guidelines; the defense bar's argument for jury fact-finding is a potential administrative nightmare because of how many complex factual issues the guidelines sometimes make relevant to sentencing.

However, as I have detailed in a number of posts (see here and here), I do not think the mess created by jury fact-finding would be so great, and I think the mess created by treating the guidelines as advisory in some cases would be considerable. Justices Stevens and Scalia both seemed to appreciate this first reality: at oral argument, Justice Stevens embraced the idea beautifully developed in the NAFD's amicus brief that plea deals will take care of most cases and trials can be adjusted in the remaining cases, and Justice Scalia suggested that the consequences of applying Blakely to the guidelines would have just a "one-shot impact" for on-going cases.

Moreover, because everyone seems to want the guidelines to apply in cases without Blakely factors, as Tom Goldstein explains here, I do not see how the Court could ultimately adopt the SG's "dual system" proposal. Two judges who have really grappled with the SG's dual system proposal (Judge Gertner in Meuffleman and Judge Presnell in King) have forcefully explained the illogic and inconsistency with congressional goals of uniformity which results from having the guidelines fully applicable in cases without Blakely factors, but wholly advisory in cases with Blakely factors.

Mreover, even putting aside concerns of logic and congressional intent, I just do not understand how the SG's proposed dual system goes about deciding which cases are in which system. Let's consider, as just one example, the Enron defendants. I believe these defendants had their indictments "Blakelyized;" because the government is alleging some Blakely factors, it would seem the Enron defendants if/when convicted would be subject to advisory guidelines sentencing. But what if the defendants contest the alleged Blakely factors? Does the judge have to make an initial determination of whether a Blakely factor exists to answer the threshold question of whether the guidelines will be binding or advisory? Critically, in order for plea negotiations to be able to develop effectively, the parties are going to want to know which sentencing system is going to apply as soon as possible. But it is hard to understand exactly when and how that determination is to be made; indeed, it seems possible that the "which system" determination could change at the last minute if/when a probation officer discovers some unrealized Blakely factor during a pre-sentence investigation.

The defense lawyers have complained the SG's proposed dual system permits prosecutorial manipulation because a prosecutor could allege or not allege a Blakely factor depending upon which system the prosecutor wants applicable. But, critically, the dual system would also be subject to defense manipulation. If a defendant thinks he might do better with advisory guidelines, he might try to concoct a minor Blakely factor — e.g., offer a $10 bribe to the probation office to implicate the obstruction of justice enhancement — with the goal of freeing the judge from the guidelines. And, in addition to the struggles the parties will have at the charging and plea stages if they cannot know what system of sentencing will apply, probation officers may be placed in a very difficult position if their pre-sentence reports are going to have a dispositive impact on whether the guidelines are fully applicable or wholly advisory.

In sum, though the idea of making the guidelines advisory on the surface appears more tenable than requiring jury fact-finding, the nuts-and-bolts challenges of administering a dual sentencing system seem enormous. Perhaps defense attorneys and line prosecutors will report in the comments that they can envision how such a dual system would work, but I suspect it is an idea that (like alternative sentencing) makes a lot more sense in theory than in practice.