Having just read DOJ’s memo on Blakely, I am appalled by the lack of substantive legal analysis. Here is how the memo begins:
“The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing.” Memo at 1.
No one suspected otherwise. Indeed, I noted (based on highly reliable intelligence) that this is what DOJ would be arguing. But where it the law? The DOJ tells us that its “legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.” Id.
Shouldn’t the DOJ refrain from issuing policy directives until after it has fully analyzed the legal issues? As an Executive Branch, the DOJ deals with law – its enforcement and prosecution. That the DOJ does not have a memo ready for distribution indicates that it has not fully analyzed the case. This, if true, is a dereliction of its constitutional duty.
Further, “All federal prosecutors should [ ] argue in favor of the continued constitutional validity of the Sentencing Guidelines as a system requiring the imposition of sentences by judges.” Id. at 2. However, DOJ offers no legal reasons for doing so. Instead, AUSAs should simply “argue.” Article II does not empower the Executive to merely make arguments. Rather, the Executive Branch “shall take Care that the Laws be faithfully executed.” Art. II, sec. 3. And lest the government forget: The Constitution is the supreme law of the land. Art. VI, cl. 2. How can the laws be faithfully executed if they are not first fully analyzed? How can the government forget that it has a duty to ensure that a criminal defendant's rights not be violated?
The remainder of the memo consists of how-to advice. Namely, how to argue against the application of Blakely; how to get a defendant to waive his rights under Blakely; and how to charge new crimes while avoiding the potential problems of Blakely. Though, again, no legal analysis is offered. The memo does not parse the Blakely opinion. There is no comparison and contrast between the Washington and Federal Guidelines. This lack of analysis is startling because in its amicus brief the United States asserted a "substantial interest in the outcome [of Blakely]" because "a decision invalidating judicial departure authority here could call into question the constitutionality of the federal Guidelines." Brief at 1.
If a lawyer had his clients make decisions based on this memo, he would be liable for malpractice. If a law student submitted this memo as a legal writing project, he would get an “F.” If I submitted this memo to my boss, he would fire me. But this memo – laden with nothing but unsupported arguments – is what the United States deems good enough to rely upon when depriving a man of his liberty. That, my friends, is appalling.
UPDATE: Marty Lederman blogs about DOJ's Blakely memo: It will be interesting to learn the Department's view as to which SCOTUS case "directly controls" the question whether the Sentencing Guidelines violate the Sixth Amendment per Apprendi and Blakely.. I read every Lederman post regardless of the topic - the dude is on fire.
UPDATE: CrimLaw analyses DOJ's arguments.