Pragmatism and Blakely's retroactivity

An important sub-plot of the Booker and Fanfan cases is whether and how the Supreme Court's clarification of the meaning and reach of Blakely could impact claims about Blakely's retroactivity. As suggested here, I think the nature and structure of the government's argument to exempt the federal guidelines from the Blakely rule could support claims that Blakely was not a "new rule" and thus must apply to all state convictions not yet final when Apprendi was decided in June 2000.

Of course, Blakely's retroactivity is not formally in front of the High Court in Booker and Fanfan, and none of the briefs are likely to address directly the complicated legal issues surrounding retroactivity. Nevertheless, as suggested by my posts on retroactivity here and here, pragmatically speaking the impact of Blakely on past state sentences is probably more consequential than Blakely's impact on current federal sentences (especially because, as federal district judges know well, constitutional challenges to state criminal judgments always find their way to federal courts through habeas actions).

Contributing to these pragmatic realities is the recent observation made by Senior US District Judge Milton Shadur in US v. Rodriguez, 2004 U.S. Dist. LEXIS 17661 (N.D. Ill. Sept. 1, 2004), that " it is obvious that the prison grapevine has been operating overtime to suggest to long-ago-sentenced prisoners [that they] can somehow draw comfort from the Supreme Court's decision in Blakely." The Rodriguez case highlights that what the Supreme Court says in Booker and Fanfan, whether or not it impacts the legal realities of retroactivity claims, will indisputably impact some perceptions of retroactivity claims.

I raise all the points simply because, whatever one thinks of the principles and doctrines of retroactivity, it is fascinating to contemplate whether and how these pragmatic considerations should influence the thinking of the Justices in Booker and Fanfan. These issues also reinforce my view discussed here that institutions other than courts ought to be getting to work on these important retroactivity questions.