Complicated statutes and statutory complications

I have highlighted before (here and here and here) that, after one comes to the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional, the so-called severability issue is extraordinarily important and extraordinarily challenging. This morning I can share here two articles forthcoming in the next issue of the Federal Sentencing Reporter that add additional nuances and complications to these constitutional and statutory issues. (N.B.: The first issue of FSR covering Blakely, discussed here, went to press earlier this month. The articles below will appear in print in the October 2004 issue of FSR.)

In “The Hedgehog, The Fox, And The Guidelines: Blakely‘s Possible Implications For The ‘Safety Valve,'” federal public defenders Jane L. McClellan and Jon M. Sands explore a series of stunningly intricate and interesting severability issues raised by the “safety valve” provision, which provides both a statutory and guideline reduction for a sizeable number of low-level federal drug offenders. As the authors explain, the “purpose of this piece is to walk down the hall of mirrors or into an Escher print that is the safety valve for Blakely purposes.”
Download mcclellan_and_sands_the_fox.doc

In “Hoist with their Own Petard?,” FSR editor Professor Steve Chanenson explains why Congress’s meddling with the federal guidelines through the PROTECT Act (and its infamous Feeney Amendment) may, after Blakely, undermine Congress’s apparent interest in preserving the existing guidelines. In his words, “Congress’s reckless disregard for the United States Sentencing Commission and open contempt for the judiciary may indeed prove to be one of the most counterproductive acts in recent sentencing history.” (Note this is a revised version of the draft posted here a few weeks ago.)
Download chanenson_blakelyprotect_act_final.doc