Judicial Economy?

Professor Berman, of Sentencing Law & Policy fame, asks whether the 4th Circuit's recommendation that District Courts issue two opinions, one assuming the guidelines entirely valid and one assuming the guidelines entirely invalid, is actually going to aid judicial economy.

As everyone who's been reading this blog for a while probably realizes, I believe the guidelines remain constitutional with only the departures¹ for unproven / unadmitted acts unconstitutional. Assuming that I am right, the action which the 4th Circuit recommends are all moot once the Supreme Court issues its opinion in this matter.²

But wait, there's more. What if the 4th is actually trying to shape the question as it is considered in the Supreme Court? By favoring two diametrically opposed viewpoints and ignoring the third the court is adding cards to the hands of those briefing to the Supreme Court. It allows them to paint the situation as a three pronged Hobson's choice: find the guidelines constitutional or they're out completely or, if you take the third choice, create massive chaos as every Defendant since the Blakely ruling files motions and comes back to court for sentencing. On a pragmatic level the first choice is far, far easier. Now, it's unlikely that any of this maneuvering will effect the votes of Scalia, Thomas, Stevens, Ginsberg, or, for that matter, O'Connor, the Chief Justice, or (most definitely) Breyer (who is too heavily vested in the guidelines to back down now).

I leave it to you to extrapolate on this further. I gotta go to court . . .



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¹ [addendum] Professor Berman was kind enough to point out that "departure" may be imprecise. Let me clarify. By departure I mean any upward "adjustment" which would have been made prior to Blakely from the base sentence composed of the intersection of the client's record with his indicted charge. I apologize for any confusion. In my rush this morning I fell into courthouse slang.

² I think that this is the most sensible reading of Blakely and am suspicious that too many courts have been entirely too eager to declare the guidelines entirely unconstitutional. In my view most of this rises from two points of origin: (1) a large number of judges who have chaffed under the guidelines and the fact that they render the judge almost meaningless in most federal criminal cases, & (2) a minority of judges who want to favor the prosecution, or at least feel there is a need to be "fair" to the prosecutor, and think that the severance of upward departures unfairly burdens the prosecutor and therefore must be gotten around by declaring the guidelines unconstitutional as a whole and then actually following them as "recommendations."