Booker and Fan Fan: Retroactivity

So who can seek relief after today's decisions in Booker and Fan Fan? And will they get anything? I hate to dash hopes, but my intial impression is that it doesn't look very promising for the vast number of defendants out there, although there will be a lot of litigation engendered by the decision. Justice Breyer writes for the Court:

As these dispositions indicate, we must apply today's holdings--both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act--- to all cases on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). ....

That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the 'plain error' test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

It seems like in a large number of cases, courts will be able to revisit improperly imposed sentences, and provided they now find the sentences to be reasonable, no change will be required.

Again, these are impressions based upon first reading of the opinions, so I may revise them.

TChris is in trial in Northern Wisconsin. I'm sure he's very relieved and will weigh in as soon as he's had an opportunity to review the decisions and reflect on them. I hope Peter G. weighs in as well.

Update: Law Prof Doug Berman of Sentencing Law and Policy agrees.

I forecast a lot of litigation from, and little relief for, prisoners with final convictions.

< Wading Through the Booker and FanFan Decisions | Charles Graner Update: Defense Witnesses Help Prosecution >
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    Re: Booker and Fan Fan: Retroactivity (none / 0) (#1)
    by Talkleft Visitor on Wed Jan 12, 2005 at 11:38:49 AM EST
    Judge Stevens states Blakely is applying principles of Apprendi and yet it appears to be a "new rule" not retroactive to Apprendi. What about those defendents who have preserved the APprendi issue at trial or appeal? Will they be included here?

    Re: Booker and Fan Fan: Retroactivity (none / 0) (#2)
    by Talkleft Visitor on Sat Jan 15, 2005 at 02:02:27 PM EST
    With respect to the retroactivity issue. If there is clear indication that a defendents sentence was impoperly imposed. How would they be able to get the ball rolling to have their cases look at again?

    Re: Booker and Fan Fan: Retroactivity (none / 0) (#3)
    by Talkleft Visitor on Fri Jan 21, 2005 at 07:20:00 PM EST
    my husband was sentenced to 30 years fed time, he has been in prison for 10 years now. will this affect his time.

    Re: Booker and Fan Fan: Retroactivity (none / 0) (#4)
    by Talkleft Visitor on Sun Jan 23, 2005 at 03:50:43 PM EST
    Anne and Nancy, TalkLeft does not give legal advice. You should consult a defense attorney in your area.

    Re: Booker and Fan Fan: Retroactivity (none / 0) (#5)
    by Talkleft Visitor on Thu Jan 27, 2005 at 11:55:42 AM EST
    My Mom is during 25 years fed time and has served 14 years for somthing that wasn't right for her to be doing all that time. I have seen in the past in present people who raped in murdered people in did less time than what my mom is serving and I just don't understand that. she has miss out all those years of her 4 kids lives that she or we can not get back for a thing that was not even worth 5 years I know I am no lawyer or nonthing but I do know that 25 years was to much. So I am happy that the law was passed and hopfully my Mom is one of those people who was given to much time and she gets a good lawyer and can come home to her family. Oh and do anybody knows any good lawyers.