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February 28, 2007

Can Bockting be read to support Apprendi and/or Blakely retroactivity?

As suggested here, and by commentors, it is not easy for sentencing fans to reader Bockting's discussion of Crawford's non-retroactivity under Teague and wonder what this all might mean for Apprendi and/or Blakely.  My quick take is that I see nothing in Bockting that would seem to undermine the arguments that Blakely may at least be retroactive to Apprendi and that the burden-of-proof aspect of Apprendi might be "watershed" and thus fully retroactive.  In fact, for reasons developed in some old posts linked below, I one might even mine passages in Bockting to try to enhance the argument for at least some measure of Apprendi and/or Blakely retroactivity.

Some related posts:

February 28, 2007 at 06:23 PM | Permalink


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» Round-Up from SCOTUSblog
In today's New York Times, Linda Greenhouse has this recap of yesterday's argument in Hein v. Freedom From Religion Foundation; Robert Barnes of the Washington Post reports here ; Karoun Demirjian has this article in the Chicago Tribune; and Tony... [Read More]

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» FEBRUARY 2007 ME, NH, MA,FED Legal Opinions from SexCrimeDefender
This post I hope will become a regular feature which will monthly review important sex crime cases in Maine, New Hampshire and Massachusetts, including both state and federal courts. U.S. SUPREME COURT Wharton v. Bockting, 549 U. S. ____ (2007) [Read More]

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Tracked on Mar 14, 2007 9:45:42 AM


Is Blakely on a par with Gideon? Whorton discusses Gideon a lot.

Also, it seems to me that since Blakely tolerates schemes that are less protective of a defendant's rights that it is hard to argue that the rule is "bedrocky" enough.

Posted by: federalist | Feb 28, 2007 7:21:45 PM

federalist, I disagree. And, in response, I add to and re-post here some (but not all) of what I previously posted in response to your identical point.

You seem to be arguing that because Blakely allows for Booker-like schemes, then Blakely is not retroactive. But I think this confuses the distinction between the rule versus the remedy. Indeed, I recall reading in the Rita/Claiborne amicus briefs that a majority of states have opted for jury-based aggravated fact finding after Blakely.

Regardless of the adopted “remedy,” the IMPACT of the Blakely rule is felt by every legislature crafting a sentencing scheme. The SCOPE of the Blakely rule effects the manner in which a legislature or prosecutor can treat EVERY convicted defendant. And the necessity of the Blakely rule to prevent INACCURATE FACTFINDING remains just as important, even after Booker, because (in theory) Blakely necessitated the elimination of the factfinding requirement in the federal scheme; hence, after Booker you no longer require factfinding that might be inaccurate.

Thus, regardless of Booker-type remedies, Blakely's impact, scope, and necessity to prevent inaccurate factfinding is quite comparable to Gideon's.

Aside from the legal analysis, empirical observation confirms Blakely's similarity to Gideon. For example, I was at a Senate hearing in the aftermath of Blakely, and the witnesses were asked to compare Blakely to another case; the answer ... Gideon. To confirm this, see 41 Am. Crim. L. Rev. 217, 251-52. I doubt people were saying the same thing after Crawford.

Posted by: DEJ | Feb 28, 2007 8:03:50 PM

you have to admit, I do have a point, and a pretty good one--even the blind point gets the acorn every once in a while

Posted by: federalist | Feb 28, 2007 8:12:50 PM

should have said, even the blind pig, not point

More argument:

My point about Blakely goes to the fundamentality of the rule. Certainly, if schemes that are less rigorous with respect to fact-finding than those tossed by Blakely are tolerated, then BRD fact-finding in sentencing is not of bedrock importance. It cannot be. Really, what Blakely does is to give a defendant the right to demand that when a legislature determines a base offense warrants no more than x years, then if x + y years are going to be imposed, then the plus y factors must be proven BRD and submitted to a jury. While this vindicates the jury trial right, which is of bedrock importance, are we really going to conclude that defendants are given bedrock, gotta have 'em rights based on a lack of discretion of a judge with respect to the base offense (i.e., no sentencing above a certain point), especially where systems where more judicial discretion is tolerated are ok? I find that hard to swallow, and I am wholeheartedly in favor of Apprendi and its progeny.

The other way of looking at it is to simply ask the question: are sentencing schemes where a base level is mandatory unless other facts are found by a judge so deficient vis-s-vis factfinding as to render the system fundamentally unfair and unreliable?

Posted by: federalist | Feb 28, 2007 8:15:54 PM

Seems to me the steps in the development of the Apprendi rule go like this: Apprendi. (brand new rule, just as Crawford was -- claims to be going back to an original understanding of a fundamental right, but requires overruling contemporary understanding to do so). Next step: Ring - explains what Apprendi meant by "statutory maximum" and applies it to inner and outer maxima within same sentencing statute. As Summerlin then holds, Ring was a "new" step beyond Apprendi, and thus not retroactive. Next comes Blakely. Under Apprendi -- as explained in Ring -- Blakely is nothing new, a obvious application, not really a new step at all. Then comes Booker, again the constitutional holding of Booker is an absolutely routine application of Blakely; there is really no serious argument advanced otherwise. (The statutory severance remedial part of Booker may be "new," but Teague is concerned only with the retroactivity on collateral review of judge-made rules of constitutional cdriminal procedure, not with statutory remedies.) From this I conclude that Booker should be retroactive not to the date of Apprendi (June 2000) but to the date of Ring, in June 2002. Discuss?

Posted by: Peter G | Feb 28, 2007 8:44:20 PM

Blakely was a 5-4 decision, over a spirited dissent. While not dispositive, that militates in favor of non-retroactivity.

Posted by: federalist | Feb 28, 2007 9:24:11 PM

The Court noted once again that it is unlikely that any rules qualifying for the second Teague exception have yet to emerge. Having heard full briefing and argument on whether Blakely qualifies, would they say that if they thought it did?

More on this here:


Posted by: Kent Scheidegger | Feb 28, 2007 11:50:56 PM

"Blakely was a 5-4 decision, over a spirited dissent. While not dispositive, that militates in favor of non-retroactivity."

Doesn't militate at all. Irrelevant in fact.

Posted by: | Mar 1, 2007 1:08:25 PM

I am an AUSA. Lord help us if Blakely/Booker is retroactive. Time for me to hop back into private practice if that happens. Anyway, I seem to recall litigating whether Apprendi (on which Booker's constitutional theory is based) was retroactive and the courts have uniformly rejected that. see e.g, Schriro, 542 U.S. 348 (Ring not retroactive). I think the 7th Cir. rejected the retroactive application of Booker, and the other circuits followed. the Supremes also denied cert on numerous occasions. If I were a betting man, which I am, I would think that SCOTUS would not hold Apprendi/Blakely/Booker retroactive.

Posted by: Percuriam | Mar 1, 2007 8:23:50 PM

Kent: I offered an analysis under which Blakely would be retroactive even if it were not held to meet the "reminds me of Gideon" standard. I assume you agree with the anonymous poster that "federalism"'s point doesn't advance the discussion (didn't the Court in fact so hold in Banks or something?). In short, what was "new" in Blakely vis a vis Ring? Do you agree with me that nothing was "new" in Booker (in the Teague sense) vis a vis Blakely?

Posted by: Peter G | Mar 1, 2007 10:02:02 PM

Hello, I am Lydia DAngelo
I am a paralegal in Portland, OR
Currently working to earn my bachelors within a continuation of the legal field.
I stumbled across your blog while looking up the reasons why the Aprendi rule is beneficial to our society.
Anyway....I found other very interesting subjects along the lines of that and along the lines of other peoples input within your blog.
Thank you

Posted by: Lydia d'Angelo | May 1, 2011 12:33:36 AM

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