Remarkable retro retroactivity reality

I reported here on a federal case with Kafkaesque qualities, but a case coming from the Illinois Supreme Court last week has a factual backdrop that perhaps not even Franz Kafka could have imagined.  The case of Lucien v. Briley, 2004 WL 2743586 (Ill. Dec. 2, 2004), concerns the retroactive application of Apprendi and Blakely, and it raises some issues I recently highlighted here.

Lucien is not remarkable legally, though it does reiterate the view of the Illinois Supreme Court that Apprendi (as well as Blakely) is a "new procedural rule" that will "not apply retroactively to cases in which the direct appeal process had concluded when Apprendi was decided."  But Lucien is quite remarkably factually because the lower Illinois courts had applied Apprendi retroactively in state habeas and had released the defendant from custody in December 2001.  Thus, at the time of the Illinois Supreme Court's decision last week, defendant Lucien had been free for three years (after having served more than 20 years of the 60-year extended-term sentence that had been imposed based on judicial fact-finding in 1980).

Interestingly, Lucien argued to the Illinois Supreme Court that he should not be reincarcerted because "his conduct while at liberty establishes that he is rehabilitated."  The Court ducks this compelling claim, even though it seems to find support in a provision of the Illinois Constitution, by remanding the case for further proceedings in the lower courts.

Based on these remarkable facts, it is interesting to speculate whether (1) Lucien might seek cert. on the Apprendi retroactivity issue (if only perhaps to try to extend his time free), and (2) whether lower courts might accept Lucien's claim that "public policy forbids reincarcerating a rehabilitated person at further public expense."  But, regardless of the court happenings, this seems like a case where executive clemency could bring a close to a case which seems more appropriate for resolution in equity than at law.