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