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November 7, 2006

Going retro...

As noted here, today the Supreme Court this morning will hear arguments in Burton v. Waddington, the case addressing Blakely retroactivity.  Kent Scheidegger here at Crime & Consequences points to this Criminal Justice Legal Foundation press release explaining why he is hoping for a decision that will "prevent the retroactive application of Blakely." 

Because I am a big fan of Blakely, I believe justice is served by not completely shutting out defendants from Blakely claims just because it took the Supreme Court a long time to finally and fully develop Apprendi/Blakely principles.  That said, I would be quite concerned about the impact of Blakely retroactivity if the Supreme Court last term in Recuenco had indicated that Blakely errors required automatic reversals.  But since Blakely errors can (and surely often will) be subject to harmless error analysis, I am rooting for the Supreme Court to give Blakely some retroactive application.  But I am not betting on it.

Some related posts on Blakely retroactivity:

November 7, 2006 at 09:18 AM | Permalink

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» Burton v. Stewart from StandDown Texas Project
Lyle Denniston at SCOTUS Blog has commentary on the above-styled case, argued at the Supreme Court earlier today. LINKWith a single question during the argument Tuesday in Burton v. Stewart (05-9222), Chief Justice John G. Roberts, Jr., dropped a fasci... [Read More]

Tracked on Nov 7, 2006 1:42:38 PM

Comments

Some retroactive application? Blakely already has huge retroactive application. Under the Supreme Court's 1987 decision in Griffith v. Kentucky, all new rules of criminal procedure are fully retroactive to all cases pending on direct appeal at the time of the decision.

All the folks on the defense side carping about the "restrictive" Teague rule seem to forget that it was one part of a two-part deal. Under the approach to retroactivity in the Warren Court, a rule was retroactive or not on both habeas and direct appeal. Miranda got the benefit of Miranda, as did the defendants in the three companion cases, but everyone else then pending on appeal did not.

Posted by: Kent Scheidegger | Nov 7, 2006 10:59:59 AM

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