The Challenges for SCOTUS

I argued below that the Supreme Court should take a Blakely case very soon in order to provide some additional guidance about what the Blakely decision means for federal sentencing. But, to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions. For example:

1. Will Harris, which allows judges to find facts that aggravate minimum sentences, ultimately survive Blakely? (Recall that both Justices Scalia and Breyer are seemingly shaky votes in the (five vote) Harris majority.)

2. Will the Almendarez-Torres exception, which allows judges to find “prior conviction” facts that aggravate sentences, ultimately survive Blakely? (Recall that Justice Thomas is already on record saying he regrets his vote as part of the (five vote) Almendarez-Torres majority.)

3. Is Blakely retroactive, perhaps even before Apprendi was decided in 2000, or at least after Apprendi?

4. Does the Blakely rule apply in all sorts of other settings in state and federal systems when judges find facts that (functionally) aggravate punishment (e.g., ordering criminal forfeitures, revoking probation, administering drug courts)?

I doubt any single case raises all these questions (and I would be shocked if such a case comes before the High Court). But I know from my e-mail in-box that there are lots of courts, lawyers and academics who could add a dozen more consequential question to this list. We have now been litigating the meaning of Furman for more than 30 years and there are still open questions; the same will likely be true for Blakely. We may as well get the progeny started ASAP.

I encourage readers to use the comments to add other big questions needing big answers in the post-Blakely world.