What was not discussed at oral argument

Posts here and here and here provide a sea of coverage of what was said at yesterday's oral argument in Booker and Fanfan. As many of these media and blog accounts highlight, there was plenty of discussion of how present and future federal sentencings might be handled in the wake of Blakely. (It is worth remembering here that if (when?) Congress gets involved, the realities of Ex Post Facto doctrine will limit its ability to impact existing cases; any changes which operate to lengthen federal sentences can only have prospective application.)

But not discussed at all during the argument was the critical question of how past cases could be impacted by Blakely — that is, no one mentioned the issue of retroactivity in any way. This is not really surprising; the retroactivity issue was not formally before the High Court in Booker and Fanfan, nor was it mentioned at all in any of the briefs. However, as I noted here and here, whatever the Justices say in Booker and Fanfan could have at least an indirect impact on the realities and the perceptions of whether the Blakely rule must be applied to sentences that became final before June 24, 2004.

Moreover, my crackerjack research assistant recently pointed out to me that in the modern uber-case on retroactivity, Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor writing also for Chief Justice Rehnquist and Justices Scalia and Kennedy suggested that "the question whether a decision announcing a new rule should be given a prospective or retroactive effect should be faced at the time of that decision." Id. at 300 (citation omitted). Obviously, the Supreme Court did not speak directly to retroactivity issues in Blakely. Indeed, the High Court has not yet even officially addressed Apprendi's retroactivity, even though Ring's non-retroactivity was settled with Shriro (see here and here for some general discussion of Blakely retroactivity issues).

I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certinly a huge prison population eager to make Blakely claims even when sentences long ago became final. As but one example, consider the recent state case of People v. Schrader, 2004 WL 2192550 (Ill. App. 1 Dist. Sept. 30, 2004): a defendant sentenced in 1982 raised Blakely to assail his 70-year murder sentence because the sentencing judge was able to add 30 years to the defendant's maximum sentence based on the find that the defendant's behavior was "brutal and heinous."