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August 16, 2005

Interesting dissenting discussion of Blakely retroactivity

A consistently helpful reader has pointed me to interesting comments concerning Blakely's retroactivity in a recent dissent from the Ninth Circuit's refusal to rehear, en banc, a panel decision in Bockting v. Bayer that Crawford is entitled to retroactive application.  Authored by Judge O'Scannlain and joined by eight other active judges, this dissent (available here) complained that Blakely is far more fundamental and important to accuracy concerns than Crawford, and yet Blakely was recently held by the Ninth Circuit not to apply retroactively:

Crawford's rule does less to decrease the chance of an inaccurate conviction than many rules that have been held not to apply retroactively. Most recently, in Schardt v. Payne, 2005 U.S. App. LEXIS 13569 (9th Cir. 2005), we refused to give retroactive effect to Blakely v. Washington, 124 S. Ct. 2531 (2004), which invalidated state sentencing guidelines that increased a defendant's sentence based on facts found by a judge by a mere preponderance of the evidence. The application of a mere preponderance standard instead of the reasonable-doubt standard required by Blakely surely increases the likelihood of inaccurate criminal punishment more than the admission of evidence under the Roberts test did. [FOOTNOTE 2] Cf. Ivan V. v. City of New York, 407 U.S. 203, 204 (1972) (per curiam) ("[T]he reasonable-doubt standard is a prime instrument for reducing the risk of convictions resting on factual error." (quoting In re Winship, 397 U.S. 358, 363-64 (1970)); id. at 205 ("[T]he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.").  If even the standard-of-proof aspect of Blakely does not satisfy the Teague test, I do not see how Crawford can do so.

[FOOTNOTE 2] Of course, Blakely relates to the accuracy of sentences, not underlying convictions. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (relying, in part, on that difference in holding Apprendi not to apply retroactively).  I do not see how the difference can be material, though, when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as elements of a crime when they increase the defendant's maximum sentence. Moreover, the Supreme Court has not distinguished between sentences and convictions when applying Teague; rather, it has implied that a watershed rule could be retroactive under Teague if it "seriously diminish[ed] the likelihood of obtaining an accurate determination in [a] sentencing proceeding." Graham v. Collins, 506 U.S. 461 (1993) (first alteration in original) (internal quotation marks omitted).

August 16, 2005 at 05:20 PM | Permalink

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