Lawlessness versus leniency: the real severability debate

As noted before here, and as highlighted by Judge Gertner in her Meuffleman opinion, lower courts appear to be “evenly split” on the question of severability. See Meuffleman, Slip op. at pp. 33-34 & n.35. This split is both fascinating and not surprising because the severability decision, at its core, requires judges to make a very difficult judgment call about whether Congress would prefer lawlessness or leniency in the wake of Blakely.

As suggested recently here and here, taking the conclusion of non-severability to its logical extreme could return federal sentencing to the “lawless” state it was in before the 1984 passage of the Sentencing Reform Act. But, as Judge Presnell suggests in his Parson decision (background here), applying the guidelines in a “piecemeal fashion” after a conclusion of severability might seem to require judges to impose unduly lenient sentences.

Understanding the severability debate in this way helps explain the positions of some of the players. Defenders are generally arguing for severability, and they have the (perceived-to-be-liberal) Ninth Circuit on their side. DOJ is arguing for non-severability since it would apparently prefer a lawless world to a lenient one (at least in those cases with Blakely factors), and Judges Cassell and Presnell seem to be in this camp.

Of course, the fundamental questions is what would Congress want. But this question is so hard to answer because, though the Congress that passed the SRA was primarily focused on remedying lawlessness, subsequent Congresses have shown a particular concern about perceived leniency. (I have written more fully about these themes, in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).)

Ultimately, I believe a sophisticated and nuanced severability analysis can avoid an extreme choice between the dueling evils of lawlessness and undue leniency. Specifically, I think the long-neglected discretionary authority of judges to upward depart from base offense levels provides a mechanism which could be utilized right now to avoid either extreme of lawlessness or undue leniency. I will have to be off-line most of this afternoon, but I hope to explain this point more late tonight.