Wouldn’t most sentences be lower if the guidelines are non-severable?
As detailed in this recent post, I am worried about some potentially peculiar and problematic consequences of a ruling that the federal guidelines are (partially or totally) not severability. Moreover, though in this seemingly long-ago post I posited that the severability debate is a tussle between concerns about lawlessness and leniency, I am now thinking that, if the SG’s non-severability argument prevails, we will have a federal sentencing world that is both lawless and lenient.
As noted before, the SG’s advocacy of non-severability seems driven principally by a concern that some defendants “could receive a sentencing windfall,” SG brief at 68, if the guidelines were deemed severable. But won’t (many?) defendants be able to receive a bigger windfall if the guidelines are declared non-severable (especially if the guidelines become inapplicable in all cases)? I suspect that most federal judges agree with Justice Kennedy’s assertion to the ABA last year that “[o]ur resources are misspent, our punishments too severe, our sentences too long … [and thus the] Federal Sentencing Guidelines should be revised downward.” If so, won’t most federal judges go even lower without any guideline constraints than if constrained by the guidelines applied in a Blakely-compliant way?
Consider, for example, the Booker facts before the Supreme Court. With the guidelines severable and still partially binding, Booker must get at least 210 months. But with the guidelines non-severable and just advisory — though with the SRA’s mandate in 18 USC 3553(a) that a judge “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of punishment — Booker could receive a sentence as low as 120 months.
Alternatively, consider Martha Stewart’s case. First, if the guidelines are completely non-severable in all cases (as two district judges have held), she has a right to resentencing; at resentencing she would have a reasonable argument that the SRA’s requirement of “a sentence sufficient, but not greater than necessary,” would call for a sentence with no jail time. Second, even if the guidelines are deemed non-severable only in cases with Blakely factors, Martha’s lawyers might claim now that her case involves a Blakely factor so she can argue for a lower sentence under the government’s non-severability theory.
Finally, consider the interesting and potent arguments made in a recent brief that I received (and provide for downloading below) that established due process and ex post facto doctrines preclude a judge from “retroactively increasing the potential penalty from the applicable Guidelines range to the statutorily prescribed maximum.” In other words, constitutional doctrines may preclude judges from imposing harsher sentences if freed from guideline constraints — i.e., judges only discretion in a “non-severed guidelines world” may be to be more lenient (which, of course, may be what they really want to do anyway).
Download blakelybrooks_severability_memorandum.pdf
After I get through all this headache causing analysis, I come to wonder whether defense attorneys might in the end argue for non-severability, too, in Booker and Fanfan.