Thoughts on Retroactivity and Clemency

I now receive many, many inquiries from prisoners’ families and others about the prospect of retroactive application of Blakely. Though I have discussed this issue briefly here, I find disconcerting the likelihood that courts will seek to limit Blakely‘s retroactivity simply for fear of having numerous federal (and state) defendant prisoners returning to the courthouse with Blakely issues. Though courts’ desire to limit Blakely retroactivity to avoid a flood of habeas petitions is understandable (and perhaps even sensible), truly compelling cases may get shut out because judicial retroactivity doctrine makes it difficult to readily (and efficiently) sort compelling Blakely claims from frivolous ones.

But, critically, institutions other than courts can focus on justice and sound policy without undue concern about creating dangerous precedents or the abstract concept of finality. For example, legislatures could draft various kinds of remedies to deal with cases now final that raise serious Blakely issues, and executive clemency could also be extremely important in this context. (Notably, the Supreme Court itself in Herrara v. Collins, 506 U.S. 390 (1993), has stressed executive clemency as a “fail-safe” for addressing compelling claims that a court might not be able to consider.)

To help me think through these issues, I spoke with Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for twenty years in the US Department of Justice (including seven as US Pardon Attorney under the first President Bush and President Clinton. She was kind enough to quickly draft a letter (set forth below), which provides her thoughts about how Blakely claims could be addressed though executive clemency. Margy’s letter is a terrifically interesting read, and I recommend it to everyone thinking about the law and policy of Blakely‘s retroactivity.
Download margylovepardonmemo_725.doc