Today's Read: "To Sever or Not To Sever? Why Blakely Requires Action by Congress"

At Sentencing Law and Policy Professor Berman has posted a link here to an article by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." It is interesting reading, and it proposes Congressional action on the guidelines to accommodate Blakely. It is critical of those who say "go slow" - i.e., Professor Berman and others - as well as of those who favor mandatory minimums. He says that regardless of how the Supreme Court resolves the issue of severability, it is hard to imagine that the Court would not apply Blakely to the federal sentencing guidelines. He also discusses the various solutions attempted by the Courts, particularly the district courts. I quote now from the Conclusion to the article:

Blakely has generated shock and awe among those lawyers, academics, and judges who think entirely in consequentialist terms (which is to say, nearly all of them). This decision was breathtakingly unpragmatic. Congress may well see Blakely as a dare (and an opportunity) to push voters' anti-crime hot-buttons, to engage in a urinating contest with the Supreme Court, and to make federal sentences even more monstrous than they already are. Blakely and the Constitution of the United States leave room for Congress to do dreadful things, and in the area of criminal justice, Congress often has.

A practical difference between jurists who call themselves pragmatists and jurists who don't, however, is that non-pragmatists are more ready to say, "Not my job" (or, if you prefer, to respect the limitations of their office). Although non-pragmatists are typically seen as the champions judicial restraint (and often see themselves that way), Blakely illustrates how a non-pragmatic stance may produce action when a pragmatist judge would tremble and dive for a hole. True restraint (that is, true respect for the limits of the judicial office) may consist of deciding legal questions as legal questions without giving extraordinary weight to the political consequences of one's decisions.

The answer to the question, "Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?," cannot be, "Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences." Moreover, although legislation is entitled to a presumption of constitutionality, the answer to the constitutional question does not depend on whether Congress - in the year of George Orwell's prophesy - approved a difficult-to-dismantle regime of push-button sentences determined by bureaucrats and administered by prosecutors, probation officers, and judges rather than jurors. Law is not all politics.

Judge Gertner recently observed, "While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act . . . or of the Guidelines. . . . The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis." [1]

In Blakely v. Washington, the Supreme Court did its job. Congress should do its.

[1] Muffleman, 2004 U.S. Dist. LEXIS 14114 at *6 (D. Mass. 2004).

A urinating contest between Congress and the Supreme Court? There are only 9 Justices and only 5 in the Blakely majority. Wouldn't this be unfair? Well, perhaps not, if one thinks of that "lone employee of the State" accompanied by 4 more and how much havoc they can wreak if they wish to. According to Justice O'Connor, that lone employee of the State plus four of his colleagues were able to produce "a No. 10 earthquake," one that has never been measured in the Richter scale. So if I were Congress, I'd think twice before starting that contest. In any event, the rest of the article is a very interesting read.

I am surprised at one thing in this article, and it is the shallowness with which it treats the severability analysis. Despite the first part of the title, "To Sever or Not to Sever" I must conclude that the emphasis is more on the legislative solution the author proposes. And if the purpose is to have some influence in Congressional action or reaction to Blakely, the "urinating contest" bit is hardly something that will get it referred to in a public hearing.