Provocative ideas from the defense

In a prior post discussing Burdens of proof and a new due process of sentencing, I highlighted, and tried to build upon, the post by Steve Sady at the Ninth Circuit Blog arguing here that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  I now see that Steve has two more provocative posts on that blog about important post-Booker topics:

• Concerning the “prior conviction” exception, Steve argues in this post that “statutes that increase maximums based on prior convictions … should be re-interpreted to require pleading and proof to a jury beyond a reasonable doubt under the doctrine of constitutional avoidance.”

• Concerning Blakely/Booker retroactivity, Steve in this post (which builds on Judge Panner’s retroactivity analysis in Seigelbaum) constructs an argument that the “Supreme Court has already made the determinations that necessarily result in retroactivity.”

Though many of Steve’s claims are contestable (and surely would be contested by many prosecutors), they provide important food-for-thought for everyone trying to sort through and develop claims in the post-Booker world.