Retroactivity of Apprendi and Blakely: Supreme Court review needed

The federal lower courts have been providing inadequate protection against Sixth Amendment violations: the failure to apply Apprendi and Blakely retroactively calls for the Supreme Court’s intervention. As reported by Professor Berman here, the courts have not batted an eye at denying relief for timely filed post-conviction actions in which the petitioner is serving a sentence greater than the statutory maximum based on controverted facts that were only found by a judge by a preponderance of the evidence. To echo Justice Thomas’s Shepard concurrence, such prisoners have been unconstitutionally sentenced "despite the fundamental imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements."

So how have so many courts gone so wrong on retroactivity? The answer seems partly to lie in two errors of legal analysis and a policy on finality that needs to be reexamined based changed facts that provide plenty of protection for finality interests.

First, the courts have ignored or misread the Supreme Court precedent holding that cases requiring proof beyond a reasonable doubt apply retroactively. The two cases upon which Apprendi is built both were explicitly held to apply retroactively: in Ivan V., the Court held that Winship applied retroactively; in Hankerson, the Court held that Mullaney applied retroactively. And the Supreme Court in Tyler found that the combination of prior decisions could result in a holding that a decision has been found to be retroactive by the Supreme Court.

The second area of legal error is the misreading of Summerlin. In Ring, the Court held that the Arizona death penalty factors were covered by Apprendi, requiring the vacation of death sentences based on judicial – rather than jury – findings beyond a reasonable doubt. In Summerlin, the Court refused to apply Ring retroactively because the judicial application of the reasonable doubt standard supplied adequate protection against inaccurate adjudications. But the Circuits citing Summerlin against retroactivity of Apprendi and Blakely miss a critical distinction: the controverted facts in the cases relying on Apprendi and Blakely were only established by a preponderance of the evidence. And the Supreme Court has required that constitutional decisions enforcing the reasonable doubt standard apply retroactively. Summerlin, with its emphasis on the saving importance of the reasonable doubt standard, supports retroactivity for Apprendi and Blakely.

Lastly, retroactivity doctrine needs a new look because the policies underlying its present articulation have been superseded by legislative and decisional law. Teague and its progeny rest on the need to balance important constitutional rights against the need for finality. The balance in favor of finality was premised on federal habeas corpus law that had no time limit on when a petition could be filed. Since the Anti-terrorism and Effective Death Penalty Act of 1996, the federal proceedings must be filed within one year of the proceedings becoming final. During the same epoch, the Supreme Court has sharply limited the types of cases in which relief could be granted: in Dodd, the Court required filing within a year of the case recognizing the right; in Felix, the Court eliminated the relation back doctrine; in Blakely, the Court required that the issue be controverted; and in Brecht, the Court placed a diluted burden on the State to establish the error was harmless.

In this context, the interests of the individual should receive greater weight than the mere year at issue on finality. Any petitioner who survives the procedural minefield should have the case heard on the merits. The unmentioned underlying rationale for the cases denying retroactivity is the old floodgates fear. The reality is that there is no flood of petitioners who were both illegally sentenced after Apprendi and Blakely and meet all the habeas procedural requirements – and those who do deserve to have their constitutional rights protected.

Let’s not forget: all Circuits approved illegal sentencing under § 924(c) until Bailey; all Circuits approved enhancement of sentencing factors by a preponderance until Apprendi; all Circuits found no problem with guideline enhancements by a preponderance until Blakely. Retroactivity doctrine – properly understood – applies directly to our clients who should benefit under Apprendi and Blakely and – in light of statutory and case law developments – the retroactivity doctrine’s rationale provides even stronger support for the Supreme Court to rule in our favor.

We need to continue to push this issue until the only Court that can finally resolve this issue grants a writ of certiorari. The memo linked here provides a starting point for briefing the issue, which has been previously blogged here and here. In addition to the Harvard Law Review article cited in the memo, two other journal articles, linked by Professor Berman (here), have come out favoring retroactivity and should be mined for theories and citations.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon