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November 10, 2005

Is SCOTUS soon to take up Booker retroactivity?

Over at SCOTUSblog, Lyle Denniston has this extended post which raises the possibility that the Supreme Court may be seriously contemplating granting cert on a case which raises the issue of Booker's retroactivity.  Lyle's post effectively walks through the basic legal issues, and here is his reason for thnking the Justices may be interested in this matter:

A case directly raising the retroactivity issue, Clark v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court's public docket. The Court has asked for, and received, a response from the Solicitor General. At least ten other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those ten, too, are scheduled for the Nov. 23 Conference, according to the docket.... [T]he fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.

I will be (quite) pleasantly surprised if the Court decides to take up this issue, even though I am (quite) certain that all the issues relating to Apprendi, Blakely and Booker retroactivity need to be conclusively resolved ASAP.

Notably, as discussed in a series of recent posts (here and here and here), the Court did recently grant cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis.  Perhaps four Justices have decided that this Term is the time to sort out all the "backward-looking" questions about how to handle cases sentenced before Blakely and Booker in violation of the constitutional rules established in those cases.

For a lot more discussion of these issues, check out this category archive which collects my recent posts on Blakely and Booker retroactivity.  In addition, for more thoughtful scholarly coverage of many retroactivity stories and angles, be sure to check out my terrific research assistant's forthcoming Ohio State Law Journal note entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." 

November 10, 2005 at 05:23 PM | Permalink


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I have put a comment on the SCOTUSBlog about this Clark case and the issue it presents.

Posted by: Peter G | Nov 11, 2005 6:19:58 PM

US Federal Probationer still before the court with an original 28 USC section 2255 with yet unanswered Booker retroactivity arguments.

Posted by: Richard Gordon | Nov 25, 2005 7:44:06 PM

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