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May 4, 2005

The waiting is the hardest part...

Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full."  This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.

I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import.  But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:

1.  The validity and scope of the "prior conviction" exception.  I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more. 

2.  The retroactive application of Apprendi, Blakely and BookerThough nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.

3.  Booker pipelines issues such as plain error.  Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits.  But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling.  This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.

4.  Blakely's applicability to restitution and other non-prison sentences.  Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems.  Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.

I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely).  Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems.  And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.

May 4, 2005 at 11:48 PM | Permalink

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» Blog Round-up - Monday, May 16 from SCOTUSblog
Starting this week, I'll be periodically posting a round-up of SCOTUS-related pieces from the blogosphere. Please feel free to email me at [email protected] if you think there are sites I should be checking out or postings I have missed. Thank... [Read More]

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» Blog Round-up - Monday, May 16 from SCOTUSblog
Starting this week, I'll be periodically posting a round-up of SCOTUS-related pieces from the blogosphere. Please feel free to email me at [email protected] if you think there are sites I should be checking out or postings I have missed. Thank... [Read More]

Tracked on May 16, 2005 11:40:21 PM

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