More insights on severability

In posts here and here last week, I raised various practical questions about the reach and consequences of the Solicitor General’s arguments that, if Blakely applies to the federal system, then the federal guidelines are not severable. But, lest I be accused of placing pragmatism over principle, I should note here that I have thought from the outset that principled severability analysis also would support finding the guidelines severable because to do so seems to me to be more in keeping with the intent of Congress when it passed the Sentencing Reform Act.

Helpfully, late last week I received a copy of a district-court brief (with the client’s name redacted) filed by Patrick O’Donnell of the firm of Harris, Wiltshire & Grannis, which does an extremely effective job of articulating why I have instinctually felt that finding the guidelines severable would better effectuate the intent of Congress when it passed the SRA. This brief can be downloaded below, and here are a few key passages:

The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress’s purposes in enacting the SRA….

Taking the Guidelines as “advisory” only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely‘s instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant’s Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress’s decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: “[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory.” Mistretta, 488 U.S. at 367.
Download dc_severability_blakely_brief.doc