Reflections on retroactivity and constitutional responsibilities
Though courts and litigants are now working through what Blakely means for current cases, and legislatures and sentencing commissions are having to contemplate what Blakely means for future cases, an extraordinarily compelling concern — at least for a lot of prisoners and their families — is what Blakely means for past cases. (Especially during the Dickens time of year, I have come to think about the sentencing world in terms of the ghosts of Blakely past, present and future.)
I have spotlighted retroactivity issues in a number of prior posts (some of which are linked at the end of this post), but I have now added a category archive on “Apprendi / Blakely retroactivity.” I suspect the doctrine and policy debate over Blakely‘s backward reach is just starting to heat up.
Indeed, the amazing opinions coming from the 11th Circuit yesterday in the Levy case (noted here), which address when the court will consider a Blakely claim, spotlight the complicated legal and policy issues that arise when already-sentenced defendants seek to benefit from Blakely. Judge Gerald Tjoflat’s dissent from the denial of rehearing en banc in Levy is a particularly compelling opinion — and not just because it cites this blog on page 33 — and it highlights that defendants’ ability to benefit from Blakely may ultimately depend more on matters of timing than matters of justice.
But, as I have suggested in a few of the posts listed below, I hope that retroactivity issues become not only the concern of courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been sentenced in an unconstitutional way. Indeed, I think executive and legislative officials have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants with valid Blakely claims who, because of judicial retroactivity doctrines, may not get relief in the courts.
I have collected and linked here some prior posts discussing retroactivity issues, and I will have more to say on these topics in coming posts: