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June 5, 2006

Could they, would they, should they ... declare Blakely retroactive?

I am not sure what I consider more fun right now: speculating why exactly the Supreme Court has decided to take up in Burton v. Waddington the issue of Blakely retroactivity in the absence of any real lower court split (basics here) OR speculating whether the Court has the cohones to declare Blakely retroactive.  Bright commentors are already thinking through the merits here, though they make the common mistake of overlooking that Schriro (concerning Ring's retroactivity) only considered the judge/jury aspect of factfinding, and not the additional burden of proof issue.  Also, recent changes in personnel make every Blakely-related Justice head-count different now.

Way back when, I did a lot of coverage of Blakely retroactivity issues, and most of my major posts on the topic can be found in this category archive.  Here are some highlights for those now eager to read up on this issue:

June 5, 2006 at 01:46 PM | Permalink


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You are right, of course, that Schriro expressly left to one side the burden of proof issue (as opposed to the judge/jury issue). I didn't go into it in my first comment because the Court's rationale in Schriro for denominating the rule procedural rather than substantive (rejecting the argument that Ring made aggravating factors elements and hence, by defining elements was substantive rather than procedural) would seem to apply to B. of P. as well.

But now focusing on the other theory for retroactivity, you're right that a fair distinction could be drawn in terms of the risk of error, part of the calculus for whether a procedural rule is a "watershed" rule. Certainly applying a "preponderance" standard instead of a beyond-a-reasonable doubt standard would appear to create a substantial risk of a different result. . .

Posted by: Alan Michaels | Jun 5, 2006 3:00:19 PM

With all due respect, is the question presented more like: Does Apprendi apply prospectively -- if Apprendi compelled Blakely -- rather than whether Blakely applies retroactively?

Howard O. Kieffer
Federal Defense Associates
Santa Ana, California
714-836-6031 x 250
[email protected]

Posted by: Howard O. Kieffer | Jun 5, 2006 4:35:33 PM

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