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October 7, 2008

"Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment"

The title of this post is the title of this new article on SSRN, and the article is a must-read for me simply because the title incorporates so many of my favorite jurisprudential buzz-words.  And, as this abstract highlights, the substance of the article also makes it a must-read:

Apprendi v. New Jersey and Blakely v. Washington threw contemporary state sentencing into disarray, completely revamping practices and procedures in light of a new understanding of the due process and Sixth Amendment rights at sentencing.  While Apprendi and its progeny arguably represent a revolution in sentencing, there is one area that the revolution has left untouched: the view that the sentencing process ends when a judge in a courtroom pronounces a sentence.  The Apprendi literature focuses on decisions a judge makes about the prescriptive sentence to be imposed, not on the actual sentence that is, in fact, imposed.  This focus is particularly baffling when one considers that most states continue to use indeterminate sentencing, and that for the hundreds of thousands of prisoners serving indeterminate sentences, a parole board ultimately determines the length and disposition of the sentence they serve.

Discretionary parole release is one manifestation of the problems created when Apprendi is applied only to the judicial pronouncement of the sentence. I focus on one specific example of this larger phenomenon: the California parole board's practice of resentencing parole-eligible crimes into parole-ineligible ones, based on findings of fact it makes by the "some evidence" standard of proof.  The California homicide statute divides parole-eligible crimes from parole-ineligible ones based on statutorily-enumerated "special circumstances," among them that the murder was especially heinous, atrocious, or cruel.  After Apprendi, a judge could not sentence an offender to a parole-ineligible sentence based on her own finding of special circumstances. Nevertheless, parole boards in California repeatedly deny parole for eligible prisoners based on their own findings that the crime was heinous, atrocious, or cruel-in some cases, even when the jury has explicitly found otherwise.

Indeterminate sentences, which combine retributive and rehabilitative components, delineate where — and, more importantly, why — the Apprendi jury right applies to some facts and not others.  This restores needed coherence to the Apprendi right and saves it from the attack that it is merely formal, not substantive.  Unraveling the issues in California's practice will clarify the underlying doctrine not just about parole and Apprendi, but about punishment itself.  In other words, exploring parole via Apprendi will teach us something about parole, just as exploring Apprendi via parole will teach us something about Apprendi.  Putting the two together illustrates larger issues about the punitive and rehabilitative aspects of sentencing, and on the judicial and executive limits of punishment.

October 7, 2008 at 08:55 AM | Permalink


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two sentences in this article seem to me to suggest that the author misperceives the fundamental principle underlying Apprendi that the Sixth Amendment line of cases is not about giving the jury a role in sentencing but rather it preserves the jury's role in finding guilt. On page 47, Prof Ball says, "Apprendi's protections end once a judge has pronounced the sentence." I think the protections end once a jury finds the existence of an aggravator which convicts the def of a greater crime. Also, "The Apprendi right attaches after guilt and before sentencing." The Apprendi right attaches before guilt not after.

I don't see how the premise of this article can be reconciled with Justice Scalia's statement in Ring that "today's judgment has nothing to do with jury sentencing.

bruce cunningham

Posted by: | Oct 8, 2008 4:24:57 PM

I am a California parole agent who is going to provide training to knew agents. I will use your information as a basis to explain both indeterminate and determinate sentencing. I want the agents to understand that after 1976 parole began to grow. Under the determinate sentencing the low and middle, high term sentencing created a standardarize system across the board for courts. The criminals were sentenced to less amount of time that they spend in prison. Subsequently, parole has continued to grow and are prison also are growing with the problem with returning of criminal offenders, parole violators. Anyway, I do have one comment with the future releasing from prison of drug related offenders back into the community with out parole supervision is a dangerous situation for the community at large. Drug addicts are oportunist, and have no problem burglizing homes, stealing and sometime hurting the victims. In my line of work, I interview parolee's and ask them how many time they steal, rob without being caught. They are candit and admit stating many times.

Thanks for your information.

Posted by: Alicia Acuna-Wolfe | Feb 25, 2009 2:34:35 AM

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