Guideline Requiem

Yesterday I wrote a bit about the Supreme Court's Blakely decision, which seems to spell the end of the US Sentencing Guidelines, as we know them. As I worked on a brief on that point this afternoon, I thought of three possible scenarios as to how this might develop.

First, the federal courts could just stick their collective heads in the sand (or elsewhere) and make a meaningless distinction between the USSG and the Washington scheme overturned in this case. If that could reach the Supremes, one of the majority Justices from Blakely might have enough buyer's remorse to save the USSG. This would, in my opinion, require considerable self-delusion and intellectual slight of hand. It's hard to believe that federal defendants on the wrong end of even worse enhancements than Blakely received wouldn't engender some sympathy.

Second, the courts could seize on a potential limiting factor in Blakely I found this morning. The "enhancement" at issue in Blakely was closer to an "upward departure", as understood in the federal system, than an "enhancement." A court could apply Blakely to USSG departures but not run of the mill offense level increases. Based only on an evaluation of the Washington scheme, that's a plausible argument. Again, however, one would need to ignore a colossal amount of Scalia's opinion about the Constitutional requirement that sentences be based on facts found by a jury. But it's possible.

Finally, of course, the courts could just submit to the inevitable and declare the USSG unconstitutional. That may happen in some districts, we'll have to wait and see.

I have no idea what will eventually end up happening. I know which one I'll be arguing for, tho'.