Guidelines Unconstitutional in All Cases - Judge Gertner

In a well reasoned opinion in U.S. v. Mueffleman, et al. (D.Mass., July 26, 2004), Judge Gertner has held "that Blakely unquestionably applies to the Federal Sentencing Guidelines; and that the Guidelines are rendered unconstitutional in their entirety by that application." (Emphasis added).

The opinion also rejects that part of the Government's argument that wishes to maintain the guidelines intact in cases with no Blakely issues and completely inoperable in those with Blakely issues.

At the same time, it is worth noting that the Government advances a selective severability argument. They claim that the Guidelines are only unconstitutional with respect to cases involving sentencing enhancements. The system can be unseverable with respect to the enhancements. In those cases, the Government argues that the Guidelines are a seamless web, wholly unconstitutional, and the Court should sentence under the previous indeterminate regime. In contrast, in cases in which there are no enhancements, the Government argues the Guidelines apply. The argument makes no sense.

At pp. 33-35 Judge Gertner goes into detail as to how she will proceed henceforth in sentencing defendants. She reverts to pre-1984 sentencing mode, with a few exceptions, including that she will take into consideration the fact that there is no longer a parole board and that defendants will have to serve almost all of the sentence she imposes; she will use the guidelines as guidelines; and

. . . will exercise my discretion to continue to apply procedural protections to these hearings -- sworn testimony, cross-examination, the application of the evidentiary rules, and clear and convincing proof. It would be troubling -- to say the least -- if judges announced that they were sentencing under an indeterminate regime, but in fact applied Guideline sentences now wholly without the procedural protections that Apprendi and Blakely were beginning to address.

Judge Gertner ends her opinion in a wishful thinking note:

Whatever the dislocation caused by Blakely, it has, or should have, at least one salutary impact. Perhaps it will start a national conversation about sentencing again, this time focused on the fairness of the process, as well as on what punishments
actually work in promoting public safety.

May Judge Gertner's hopes be fulfilled! This is a must read opinion from a very thoughtful Judge.