Blakely Retroactivity: Jacobs and Johnson and Jones, Oh My!

I am off to a long-delayed / awaited post-conviction hearing tomorrow down on the Ohio River. Before leaving, though, I thought I'd get out the word about three blockbuster cases from the Indiana Supreme Court last week. Actually, Jacobs is the lead case, and Johnson and Jones are merely companion cases applying what Jacobs decides. What Jacobs decides is that Ross v. State, 729 N.E.2d 113 (Ind. 2000), which involved interpreting various sentence-enhancing statutes, should be applied retroactively. It should be applied retroactively, because Teague (adopted by the Indiana Supreme Court for state retroactivity analysis) only applies to new rules of criminal procedure. Ross interpreted or re-interpreted what the court concluded were substantive criminal statutes, and so Teague doesn't apply at all.

Here is what what the Indiana Supreme Court said in Jacobs constitutes a substantive rule:

Substantive law, on the other hand, is broadly defined as the law that “declares what conduct is criminal and prescribes the punishment to be imposed for such conduct.” Wayne R. LaFave Substantive Criminal Law §1.2 (2d ed. 2003). In federal habeas, a substantive rule is one that “alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at __, 124 S.Ct. at 2523. This understanding of substantive rules in the habeas context suggests that substantive rules are those that address the criminal significance of the underlying prohibited conduct. The Wisconsin Supreme Court summarized the meaning of substantive rules in In re E.B. by saying that “substantive law is that which declares what acts are crimes and prescribes the punishment therefore.” 330 N.W.2d at 591. See also, In re Shane B, 7 P.3d at 97 (“In the criminal context, substantive law ‘either defines a crime or involves the length or type of punishment.’”)(quoting Lamb v. Kansas Parole Bd., 812 P.2d 761, 764 (Kan. Ct. App. 1991)); State v. Sutherland, 804 P.2d. 970, 977 (Kan. 1991).

In Bousley, the Supreme Court explained the distinction between substantive and procedural rules in light of the principles underlying the decision in Teague. The Court noted that the foundation of Teague is the notion that:

one of the principal functions of habeas corpus [is] to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. Consequently, unless a new rule of criminal procedure is of such a nature that without [it] the likelihood of an accurate conviction is seriously diminished, there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct beyond the power of the criminal law-making authority to proscribe, necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.

Bousely, 523 U.S. at 620 (alterations in original) (internal citations omitted). Considering that the underlying goal of Teague, as expressed in Bousley, is to ensure that an individual is not unjustly confined for actions that are not criminal, substantive laws are properly characterized as those rules that directly alter either the nature of the crime in question, or the ability of the legislature to criminalize certain conduct. See, Bousley, 523 U.S. at 620-21; Lagundoye, 674 N.W.2d at 95-99; In re E.B., 330 N.W.2d at 584.

. . . .

Considering these cases, it seems that in context of post-conviction relief, substantive rules should be considered those that either define criminal behavior itself, or define the penalties applicable to that behavior.

Although the question is a close one, we conclude that our decision in Ross falls more fittingly into the substantive category. Ross made clear that a material element of Indiana’s general habitual offender statute, section 35-50-2-8 of the Indiana Code -- that an individual could be punished as a habitual offender only if convicted of a current felony and two prior unrelated felonies -- could not be satisfied if the current felony was a misdemeanor handgun offense already enhanced to felony status under section 35-47-2-23(c)(2)(B). Ross, 729 N.E.2d at 116-17. Although Ross did not make legal what was illegal, or vice versa, our statutory interpretation led us to the conclusion that the legislature did not intend to enhance the same handgun offense twice in the same proceeding. This seems like the sort of subject matter that substantive law concerns itself with: “what conduct is criminal and [what is] the punishment to be imposed for such conduct.” 1 Wayne R. LaFave, Substantive Criminal Law §1.2 (2d ed. 2003).

Slip op. at 6-7.

If one places the above beside Justice Scalia's discussion of 17-element robbery charges in Blakely, it is hard not to conclude that Blakely or Apprendi ("as our precedents make clear") announced a new substantive rule not subject to Teague in either state or federal court.

Of course there's Summerlin (a.k.a. Schriro in Jacobs) to deal with. And it is interesting that even the four dissenters in Summerlin did not take the approach that Ring announced a new substantive rule. But Ring merely dealt with the Sixth Amendment; Blakely packs the double wollop of the Sixth and Fourteenth Amendments and, on one view, at least, does not merely address who decides, but also what is to be decided--robbery now may have 17 elements instead of 3.

Time to litigate.