Highlights of a remarkable USSC document

The US Sentencing Commission’s recently posted “Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington” (available herehere) is a remarkable document which, though “preliminary” and “anecdotal,” paints a vivid and fascinating picture of federal sentencing in the post-Blakely world.  I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing.   For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission…. Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district….  Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report…. Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing “windfalls.” Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.