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May 16, 2007

When will SCOTUS address Booker retroactivity?

Amidst lots of thoughtful sentencing work by Sixth Circuit judges recently (examples here and here), Judge Martin's dissent in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here) stands out as an extraordinary tour de force making the case for Booker retroactivity. 

As highlighted before, Judge Martin effectively documents that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  And this closing flourish from Judge Martin's opinion reminds me why the the Apprendi-Blakely five (or Cunningham six) might possibly be moved by arguments for Booker retroactivity:

[T]he Apprendi line of cases means much more than how long the government can send a defendant to jail — it speaks volumes about how we, as a democratic society, are able to follow the strictures that represent the very backbone of our legal and Constitutional system.  Apprendi and its offspring — Blakely and Booker — recognize a critical, constitutionally mandated check on the sentencing process, through the grounding of sentencing determinations in facts that have been proved to the jury beyond a reasonable doubt.  Our modern federal judiciary has been reluctant to recognize this Sixth Amendment limitation, probably due to the primacy of the mandatory sentencing guidelines that has been ingrained in our approach to sentencing for seventeen years.  Although this is an innate and natural way for anyone to think, federal judges included, our personal experience over seventeen years clearly must take a backseat to the fundamental guarantees of the centuries-old Bill of Rights, with the benefit of the Supreme Court's reinvigoration of these values through Apprendi and its progeny (i.e. Booker).

For various reasons, the Valentine case appears to present a particularly good vehicle for the Supreme Court to consider Booker retroactivity issues.  I hope the defendants in Valentine will seek cert, and I hope the Justices and their clerks recognize that these issues merit a place on the court's ever-shrinking docket.

May 16, 2007 at 12:53 PM | Permalink


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Tracked on May 16, 2007 5:29:00 PM

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Tracked on May 16, 2007 6:42:20 PM


I am reasonably certain that neither Justice Scalia nor Justice Thomas would join a holding that Teague does not apply to 2255 cases or that anything in the Apprendi line qualifies for the so-called second exception. Both have written that it is unlikely that any rules so fundamental as to qualify for that exception remain to be made, a significant shift from the language of Teague itself, which said "many."

The only major question is which steps on the Apprendi staircase qualify as new rules.

Posted by: Kent Scheidegger | May 16, 2007 5:44:35 PM

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