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July 25, 2004

Thoughts on Retroactivity and Clemency

I now receive many, many inquiries from prisoners' families and others about the prospect of retroactive application of Blakely. Though I have discussed this issue briefly here, I find disconcerting the likelihood that courts will seek to limit Blakely's retroactivity simply for fear of having numerous federal (and state) defendant prisoners returning to the courthouse with Blakely issues. Though courts' desire to limit Blakely retroactivity to avoid a flood of habeas petitions is understandable (and perhaps even sensible), truly compelling cases may get shut out because judicial retroactivity doctrine makes it difficult to readily (and efficiently) sort compelling Blakely claims from frivolous ones.

But, critically, institutions other than courts can focus on justice and sound policy without undue concern about creating dangerous precedents or the abstract concept of finality. For example, legislatures could draft various kinds of remedies to deal with cases now final that raise serious Blakely issues, and executive clemency could also be extremely important in this context. (Notably, the Supreme Court itself in Herrara v. Collins, 506 U.S. 390 (1993), has stressed executive clemency as a "fail-safe" for addressing compelling claims that a court might not be able to consider.)

To help me think through these issues, I spoke with Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for twenty years in the US Department of Justice (including seven as US Pardon Attorney under the first President Bush and President Clinton. She was kind enough to quickly draft a letter (set forth below), which provides her thoughts about how Blakely claims could be addressed though executive clemency. Margy's letter is a terrifically interesting read, and I recommend it to everyone thinking about the law and policy of Blakely's retroactivity.
Download margylovepardonmemo_725.doc

July 25, 2004 at 08:49 PM | Permalink


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I have yet to see a satisfactory answer to this question: Why is the issue of retroactivity being viewed in terms of Blakely and not Apprendi?

The Blakely majority states that it is "apply[ing] the rule we expressed in Apprendi" and that the definition of "statutory maximum" is clear from past precedent. In other words, Blakely is not announcing a "new rule" for which a retroactivity analysis needs to be performed.

It seems that some folks' wishful thinking that the Court would avoid applying it to systems like the fed guidelines got in the way of a common sense reading of Apprendi.

Posted by: Michael Limrick | Jul 28, 2004 11:29:30 AM

Does anyone have any idea how long it is going to take for the U.S. judicial system to figure out retroactivity? I had my attorney transcribe my sentencing and we are ready to go. I am a PERFECT MATCH to the unconstitutional sentencing practice of Mr. Blakely. I was given two extra years on aggravators that I never stipulated or conceded to nor did a trial by jury find them beyond a reasonable doubt. The judge in my case let my attorney and D.A. duke it out an found 3 out of four aggravators by preponderance of evidence and gave me two extra years beyond the presumptive. I want off probation yesterday. How long is it going to take for the Supreme Court, President, or Congress to clarify Blakely's retroactive reach? Someone PLEASE respond, I cannot seem to get a straight answer.

Posted by: Joshua Harrison | Jul 28, 2004 11:00:20 PM

I am a mother of a man arrested for spousal abuse in Eureka California where there is a zero tolerance for this offense.
Ordinarily, I am told by the public defender, it is a five day jail time and considered a misdemeanor, but according to one police officer, they intend to make an example of my son in this case.
The public defender has counciled him to accept a guilty plea to a felony with three years probation and has attached a BLAKLEY's Law to that probation wherein he for any reason of saying or doing anything in a threatening manner to anyone what so ever will be immediately given a mandatory sentencing to a penitentary.
There was no weapon involved, no visible marks on his wife, she attended work three days later with no visible trauma. I believe that this is an unbelieveable harshness to the sentencing. Is there any recourse? Why was Blakeley's Law attached to this sentencing? How dire does the circumstance have to be to have this imposed on a person?
Is there anything that you can direct me to, help me with, inform me of, to allow me to understand this?
Thank you sincerely
Jobekah Trotta

Posted by: Jobekah Trotta | Oct 7, 2004 4:51:18 AM

I am writing this for my son who was sentenced to a 7 year straight sentence on a first time nonviolent offense. Lawyers on both sides agreed to 3 1/2 years. But this judge decided differently. These judges need to be put down a peg or 2. My sons lawyer has been trying to help him through the Blakely relief. It is a good thing but he has been hitting a lot of roadblocks in the courts. I have been writing to so many people to help him but to no avail. I dont know where to turn next. Dont these judges know about the overpopulation in all the jails and prisons? Are they that oblivious? Someone I read about in my local paper got up to 6 years for two homisides by vehicle and my son got 7 years straight for a nonviolent first time offense! Why? Our entire justice system is so lopsided. Donna

Posted by: DONNA PALMER-BRUNNER | Jun 16, 2005 12:02:43 AM

What is the mandatory sentence in the state of Ohio Wayne county for spousal abuse first degree misdemeaner. I'm the victim and I'm just curious what he will get. thankyou

Posted by: kay | Feb 9, 2006 12:09:40 AM

I'm an RN just wanting to know what he'll get for what he did to me?

Posted by: kay | Feb 9, 2006 12:13:04 AM

Please listen
the implementation for Supervised Release is wrong
if this is read please let me know so I can explain this is a very important matter.

Posted by: advocate sanda | Oct 20, 2006 11:55:21 AM

Our son was assaulted by Phoenix Policeman Warren Brent Poole # 5011, for no reason at all. Mr. Poole at sixty pounds heavier was on top of our son, beating and choking him, our son on his stomach reached for a stick and swung over his head and hit Mr. Poole on the head and Mr. Poole was going to shot our son in the back of the head, we believe that this would have being Murder one. The Prosecutor added "Dangerousness"
which we think was illegal, so the sentence was increased to 10 1/2 years as a minimum for trying to save his life. Our Website: setlouiefree.com
the link "thunder road" tells all.
Thank You

Posted by: Luciano C. Arriaga | Jan 5, 2007 1:18:18 PM

I am a retired Sheet Metal Worker and a retired Junior college Instructor.

Thank You
Luciano C. Arriaga

Posted by: Luciano C. Arriaga | Jan 5, 2007 1:23:01 PM

I am the wife of someone who was convicted of 1st degree murder and sentenced to life in prison. It is now time to write his letter of clemency. What kind of things should I put in the letter? The fact that he served in the military for 3 years before his arrest. The fact that he is a good man with 3 kids that adore him. What about the fact that he's never gotten in trouble for any type of violent crime better yet a traffic ticket.Or how about the woman that seemed to be the main witness in the trial he had an affair with. oh, what about the fact that all of the jury members were from the same area and were stationed on the same post for the entire year before the trial. Please write back ASAP. Thank you.

Posted by: angel | Nov 7, 2007 3:32:45 PM

What I'd first like an answer on is why did the states accept the federal Truth in Sentencing laws and mandatory minimums to begin with? Could it be the federal block grants waved under their noses and they were just too weak willed to see that they were allowing the federal government to usurp their only power; that by which states could still call their own shots and make their own laws?

There is a young man doing 6 years in prison for a first DUI offense. There was no accident and no one was harmed at all. At some point in time prior to his arrest the Arizona legislature for some unknown reason altered one of the DUI laws to read anyone arrested for a DUI while driving on a suspended license would be charged for a felony instead of two misdemeanors --regardless why the license was suspended. There is a myriad of reasons a license can be suspended, such as not paying traffic fines on time.Had his license been suspended for a DUI that would have made it his second DUI offense; however, it was not for a DUI. This is the sole reason he is serving 6 years in prison rather than receiving a 24 hour jail sentence as all other first time DUIs are; and has it been a second DUI offense he would've been sentenced to 30 days in jail, or maybe 90 days in jail. But, no one else is sentenced to a 6 year prison term for a first DUI. He is right now serving his sentence with a guy who is there on a 2.5 year sentence for his third DUI arresta and conviction -- at least one of which was catergorized as extreme or aggravated DUI(s). So where is the justice in this? There will be a 603L Provision Clemency hearing but as everyone knows Napolitano approves/doesn't deny less than 1% of all, even unanimous recommendations to her for clemency by the Board of Executive Clemency, so again where's the justice here?

Well, there just ain't none in Arizona when the sentencing judge believes a sentence that was excessively long should be reduced through the only route to do so -- the clemency process -- but Napolitano makes a sick joke of the process in her abuse of power that is self serving and out of her own concern for her own political aspirations. Her priorities are not doing the right thing for all these people who didn't even belong in prison to begin with.

Posted by: | Dec 9, 2007 4:22:41 AM

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Posted by: laptop battery | Oct 14, 2008 5:15:30 AM

I am a PERFECT MATCH to the unconstitutional sentencing practice of Mr.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:41:54 AM

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