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March 24, 2005

A potent argument for Apprendi's retroactivity

Because they all reach the same conclusion in the same basic way, I have not often noted the many district court rulings that Booker (or Blakely or Apprendi) is not to be applied retroactively to final cases.  Also, I am often a bit peeved when some of these cases summarily rely on Schriro to support the non-retroactivity conclusion even though, as explained here many months ago, Schriro only concerned retroactive application of the jury right and not the application of the proof beyond a reasonable doubt standard.

These matters issue got my attention recently after I was alerted to a Note in the March 2005 issue of the Harvard Law Review which thoughtfully argues not only that "Apprendi's reasonable doubt holding demands retroactive application," but also that the holding in Schriro actually supports the retroactivity of Apprendi's reasonable doubt holding.  See Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005).

Of course, prisoners with final convictions need to hope this Note's potent arguments capture the attention of some courts.  Ever biased by my Gannett House days, I close by suggesting that the power of a Harvard Law Review Note should not be understated.  After all, District Judge Young's opinion in Green, which presaged Blakely (details here), relied heavily on a HLR Note, and Justice Breyer cited an HLR comment on Blakely at the tail end of his Booker dissent.

March 24, 2005 at 01:15 AM | Permalink


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Can you hum a few bars of the Note's argument, Prof. Berman? This lawyer must confess that he is among those who thought the Supreme Court's decision in Schriro was the death-knell for arguments that Apprendi was a "watershed" decision retroactive on habeas.

To be sure, as an original matter, I do think Apprendi ought to have been held retroactive, a view I've held since reading the late Judge Richard Arnold's persuasive dissenting opinion in U.S. v. Moss (8th Cir. 2001).

Posted by: Plainsman | Mar 24, 2005 12:30:21 PM

The thrust of the Note's argument is that retroactivity doctrine really is/should now about applying retroactively procedural rules which increase the accuracy of convictions, and Apprendi's reasonable doubt holding is one such rule. The Note highlights that Schriro stressed decisional accuracy in rejecting retroactive application of the jury right, but the proof standard is a different matter.

Works for me.

Posted by: Doug B. | Mar 24, 2005 12:47:36 PM


Judge Panner's decision in United States v. Siegelbaum, 2005 WL 196526 (D.Or. 2005), concluded that Schriro is not dispositive on the retroactivity issue, because it addressed only the allocation of factfinding responsibility, not the standard of proof.

Posted by: Anon | Mar 24, 2005 2:19:58 PM

I'm a paralegal. I've been trying to get a copy of Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005) on line. I couldn't find it anywhere including Lexis. Any idea on finding a copy? Thank you.

Posted by: Deters | Mar 25, 2005 10:38:24 PM

The problem with the Harvard article's argument is that if the burden of proof is so important and fundamental, why under the post-Booker regime can judges still use discretion to depart from jury sentences under the advisory system?

Posted by: Crim Lawyer | Mar 30, 2005 7:56:51 PM

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