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October 22, 2005

Seeking retroactive Blakely "Justice for All"

There are so many interesting stories and angles to examine when considering pre-Blakely sentences that were indisputably imposed in violation of Blakely's constitutional command.  I am thus proud to be able to provide for downloading a forthcoming article which thoughtfully covers many of these retroactivity stories and angle.  This article, which is authored by one of my terrific research assistants and is soon to appear in the Ohio State Law Journal, is entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."  Here is the article's abstract:

In the months following the Supreme Court's holding in Blakely v. Washington, a countless number of state and federal prisoners were hopeful that their unconstitutionally imposed sentences would be revisited. For prisoners who were not given their Sixth Amendment right at sentencing, the question became — in the words of one prisoner — "Who is going to mount the vigorous and spirited campaign this cause so deserves?"

There are strong arguments to suggest that Blakely's requirement of jury fact-finding using the beyond a reasonable doubt standard of proof should be applied retroactively to cases on collateral review.  Similar to Gideon, Blakely is a watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of a proceeding.  This result, however, is unlikely to occur.  The other two branches of government must be prepared to ensure constitutionally just sentences for pre-Blakely defendants.  The legislative branch should contemplate ways in which to minimize the effect a retroactive holding would have on the judiciary and should also correct the recent statutory interpretation of the habeas statute. The executive branch should use its historic remedy of correcting injustices through the clemency process.  Constitutional justice can be accomplished for pre-Blakely defendants and all three branches of government must begin this dialogue to ensure justice for all.

Download blakely_retroactivity_note_final.pdf

October 22, 2005 at 04:05 PM | Permalink


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You never mention "private citzen" when asking who reads your information. I think you might be surprised to know just how many "private citzens" do read you comments, so many of us have dear ones that are involved in this madness of sending good, honest, family men and women to prison for long periods just for using a God given plant. God did not create anything that he didn't intend his people to use except the forbidden fruit, this was another deal we all know about that.

Posted by: Rachel Alburtis | Oct 29, 2005 3:08:29 PM

Hello! After reading the 71 page note, "Seeking retroactive Blakely 'Justice For All'", I was overwhelmed to realize there is still so much that CAN be done to help our loved ones who are serving unconstitutionally imposed pre-Blakely sentences - but all of the HELP mentioned must come from the government. What is not noted, is how the CITIZENS can get involved to help move all of these wonderful 'shoulds' for the congressional and/or executive branches along. CAN YOU PLEASE HELP US TO UNDERSTAND WHAT WE CAN DO TO MOVE THESE 'SHOULDS' FROM PAPER TO REALITY?? THANK YOU!

Posted by: Kelli Johnson | Sep 21, 2006 6:20:53 PM

I need information despertly - my husband was sentenced to 5 years in DOC Buena Vista Colorado for Attempted second degree assault and the judge and da aggravated it. He only crimnal record was driving under revocation, suspension several times which made him a habitual traffic offender and a misdemeanor 3 degree assault. He had a public defender that told him he had to take this deal and he would only get maybe 1 and 1/2 yrs. He is an alcoholic and had beeen sober for almost 3 years, but when we went through mortgage fraud, and his parents divorced after 30 years he feel off the wagon. There were three 2 other defendants involved 2 with violent criminal historys - one got off with nothing and the other will be out in March of 2007. My husband had a brain tumor removed in 1996 which had been growing since he was very young 5- six years old and it became massive by the time they finally diagnosed him. He has brain damage and lost all short term memory. Huerfano County Judge Appel had it out for him. There is much more to this , but after doing some research on Blakelys law It
is my understanding that the Judge and DA can not aggravate an Attempted assault without something to do with a jury - am I wrong. Please explain this to me so I can understand it and let me know who I can write letters to - should I get the civil rights committee involved. I have already written the Governor, Attorney General, Senator and no one responses. Thank you for any information or help you can give me Linda Drummond

Posted by: Linda Drummond | Oct 3, 2006 8:26:06 PM

I am Andre Drummond's spouse who is trying to find out if this whole sentencing was a violation of many rights. Plus his lawyer had a restitution hearing without advising him and they take the money off his books.

Posted by: Linda Drummond | Oct 3, 2006 8:32:53 PM

State of Alaska vs.Charles Randolph Grosvold case no.3AN-S99-7481CR case under appeal in the Appellate Courts. I am the fiance of this inmate that is currently incarcerated and would be interested in more articles and possible avenues of release and since it says of the status of his case, why is he being told why he cannot bail out of jail? He has already served 7 years and four months of a ten year sentence, which would mean once Blakely is applied through his case retroactively all of his time will be served. Currently he is serving time for a parole violation on this case and once released will have served 23 months over and still be on Parole on this case. Please let me know what you think articles of hope or whatever we need to know and pray they don't drag there feet and give everyone the Constitutional Rights they deserve.

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