To Sever or not to Sever? Why Blakely Requires Action by Congress

Abstract

The Supreme Court’s decision in Blakely v. Washington requires a response from Congress — the sooner the better. At present, however, the Senate has merely passed a resolution indicating its hostility to Blakely and urging the Supreme Court to make the issue go away. The House has done less. An army of apparently knowledgeable observers has aided and abetted Congress’s crime. The recent Senate resolution noted that “the Department of Justice, the Sentencing Commission, and others advised the [Judiciary] Committee that corrective legislation was not necessary at this time, with the hope that the Supreme Court would clarify the applicability of its Blakely decision to the Federal Sentencing Guidelines in an expeditious manner.” Among the “others” who counseled against prompt Congressional action were some editors of this journal, Professors Berman, Miller, Demleitner, and Wright. They told the Judiciary Committee, “As editors of the leading casebook and journal on sentencing law, . . . we have a simple and straightforward recommendation . . . : go slow.” These authorities declared that the current “legal variety” in judicial responses to Blakely was healthy, and they expressed concern that Congressional action might “short-circuit the experience and creativity of thousands of lawyers and judges now working through these problems.” Delay, by contrast, would enable Congress to “draw on the efforts and experiences” of these practitioners and judges. Although the authors called Blakely “a legal earthquake,” they said it was “not a disastrous event for the federal sentencing system.” For these imperturbable experts, it was sufficient, for now, to let a thousand flowers bloom. Neither these scholars, nor most others, nor Congress seems adequately to have recognized the unavoidable defects of every possible judicial response to Blakely. They do not seem to have recognized the ease with which Congress could enact a fair and rational sentencing system consistent with Blakely’s principles. In proposing that Congress await the accumulated wisdom of lawyers and judges, they appear to have assumed that, in responding to Blakely, the courts and Congress will address essentially the same issues. This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. If approved by Congress, this system could remain in place indefinitely without incongruity or embarrassment and without the one-sided tilt of other proposed responses to Blakely. Legislators determined to eliminate all judicial discretion and to ensure that Blakely never results in more lenient sentences than the courts would have imposed without it will not cheer this proposal, but the proposal might be acceptable, at least as an interim measure, to almost everyone else.