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December 4, 2004

Reflections on retroactivity and constitutional responsibilities

Though courts and litigants are now working through what Blakely means for current cases, and legislatures and sentencing commissions are having to contemplate what Blakely means for future cases, an extraordinarily compelling concern  — at least for a lot of prisoners and their families — is what Blakely means for past cases.  (Especially during the Dickens time of year, I have come to think about the sentencing world in terms of the ghosts of Blakely past, present and future.) 

I have spotlighted retroactivity issues in a number of prior posts (some of which are linked at the end of this post), but I have now added a category archive on "Apprendi / Blakely retroactivity."  I suspect the doctrine and policy debate over Blakely's backward reach is just starting to heat up. 

Indeed, the amazing opinions coming from the 11th Circuit yesterday in the Levy case (noted here), which address when the court will consider a Blakely claim, spotlight the complicated legal and policy issues that arise when already-sentenced defendants seek to benefit from Blakely.  Judge Gerald Tjoflat's dissent from the denial of rehearing en banc in Levy is a particularly compelling opinion — and not just because it cites this blog on page 33 — and it highlights that defendants' ability to benefit from Blakely may ultimately depend more on matters of timing than matters of justice.

But, as I have suggested in a few of the posts listed below, I hope that retroactivity issues become not only the concern of courts.  All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been sentenced in an unconstitutional way.  Indeed, I think executive and legislative officials have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants with valid Blakely claims who, because of judicial retroactivity doctrines, may not get relief in the courts.

I have collected and linked here some prior posts discussing retroactivity issues, and I will have more to say on these topics in coming posts:

December 4, 2004 at 07:04 PM | Permalink


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The link to the Christmas Carol first edition plates is wonderful. I almost feel like asking about Doug Berman what the Joker asked about Batman in the first Batman movie--with the appropriate Nicholson intonation: "Where does he get all the wonderful toys?"

Posted by: Michael Ausbrook | Dec 4, 2004 10:26:26 PM

"All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been sentenced in an unconstitutional way..."

If I were Mr. AG-in-waiting Gonzales, I might reply, "Hmmm, the new paradigm of the war on crime renders obsolete the Constitution's strict limitations on imposing upon defendants sentences higher than those based on the crimes charged and authorized by a jury's guilty verdict, and renders quaint some of the Constitution's provisions."

And if I were nearly anyone else in any branch of government pledging commitment to the Constitution, I would then remain silent regarding the above statement.

Of course, this is just conjecture based on objective observations of past performance. It could turn out differently with new behavior that diverges from past behavior.

Posted by: Jeannie | Dec 5, 2004 12:59:16 AM

As another poster has noted, the US Supreme Court seems satisfied that Blakely didn't really break any new ground - it merely applied the rule of Apprendi. The question then is whether or not one should be looking at the retroactivity of Blakely or Apprendi?

But, in Schriro, the court decided that Ring was not retroactive. Ring, like Blakely, applied the principle of Apprendi, yet we now know that the 'rule of Ring' is not retroactive. Schriro suggests that there is a rule of Ring, a rule of Blakely, and a rule of Apprendi - that all say (essentially) the same thing. Why isn't the Court saying Apprendi is/isn't retroactive - end of discussion?


Posted by: Ron O'Neal | Jan 10, 2005 2:45:32 PM

Yes, The US Supreme Courts did pass the Law of Blakely/Booker,"Thank God", but did they intentionally not define"Retroactivity"or not put it in due too the 1987 until now?? I feel that if it was not for the case of Blakely/Booker then the Retroactivity was not be needed. They need clarification/clarify this and do the right thing in given the people that made a mistake for the first, second time of their wrong doings of the past. These people that have served their time plus years, need justice(freedom) due too there actions,the judges that put years on them that they did not deserved. They put names that added years not months! So my question is Will the judges do the right thing this time around and appendi /retractivity(1987 until) and rule the right way??? Maybe Counseling needs to be added for the people that broke the law instead of just years??? This I think will help out and lower drug trafficing. Locking people up on first and second defense for years(15/20) is wrong and will not solve the problem. This we/ the world see's. Please let me know your input of this. Be Blessed and God Bless you and everyone else.

Posted by: Jacinda | Jan 30, 2005 8:12:26 PM

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