Principle versus pragmatism

In another report from his time at the NASC’s national meeting, Ron Wright provides the following “News from the USSC”:

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.

Participants at the conference were all speculating about the likely shape of any new legislation to reshape federal sentencing. The predictions were all over the map in some respects, but there was powerful consensus about one thing. The final product, in the view of most conference participants, would leave prosecutors with at least as much power as they held before Blakely, and would leave judges and defense attorneys with at least as little power.

Though quite pleased to hear the USSC is working on a Plan B, I am troubled by the idea that the USSC staff thought it likely the High Court would uphold the guidelines in the face of Blakely. In accord with Judge Cassell in Croxford and Judge Posner in Booker and the Ninth Circuit in Ameline and so many district court opinions, I cannot find a principled, jurisprudentially sound way to avoid the conclusion that Blakely renders at least part of the federal guidelines unconstitutional.

I can, however, appreciate many powerful pragmatic arguments for not applying Blakely to the guidelines because of the havoc likely to result from declaring unconstitutional a long-in-development and long-in-operation federal sentencing scheme. Indeed, I recently received a copy of a brief in which the government colorfully describes the consequences of applying Blakely to the federal guidelines (I have added the picture which merits a click to make larger):

To upset that understanding now [that judges can find facts by a preponderance at sentencing] would wreak havoc on the federal criminal justice system. Godzilla rampaging through Tokyo during a level 10 (on the Richter scale) earthquake could not wreak more havoc…. Pandemonium would reign supreme.

Staff members at the USSC apparently believe that the Supreme Court, following what is now a majority of circuit courts, will be moved more by pragmatism than principle to uphold the federal guidelines and reign in Godzilla, … I mean Blakely. Though I make no predictions about the likely outcome in the Supreme Court, I do think Booker and Fanfan place the tension between principle and pragmatism in stark relief. Indeed, even the Blakely decision itself highlighted this dynamic: the dissenters really did not have any strong principled arguments against the majority’s holding, but they did present quite powerful (though ultimately unsuccessful) pragmatic arguments.