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June 12, 2009

Great new article on Apprendi and parole in Columbia Law Review

I am pleased to be able to highlight the publication of this great new article by W. David Ball in the June 2009 issue of the Columbia Law Review, titled "Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment."  The full article can be accessed at this link, and here is the abstract:

Under Apprendi v. New Jersey, any fact that increases an offender’s maximum punishment must be found by a jury beyond a reasonable doubt.  The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences — that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.  In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In states where a prisoner is presumptively entitled to parole release, the denial of parole increases the maximum punishment without a jury finding the relevant facts beyond a reasonable doubt. In California specifically, the parole board can transform parole eligible offenses into parole ineligible offenses based on its own findings of fact about the crime, even when these findings contradict the jury’s.  A purely mechanical reading of Apprendi would require jury findings of fact for all components of the parole release decision.  I argue for a reading of the Apprendi rule more consonant with Justice Stevens’s Apprendi opinion itself, where the jury’s power comes from its role as the retributive conscience of the community.  Because indeterminate sentences combine retributive and rehabilitative components, they delineate where — and, more importantly, why — the Apprendi jury right applies to some facts and not to others.  Exploring Apprendi in this context restores needed coherence to the doctrine, illustrating larger issues about the punitive and rehabilitative aspects of sentencing as well as the judicial and executive limits of punishment.

I was graciously asked to write a little review/response to this article for the Sidebar feature of the Columbia Law Review, so I will avoid pre-empting myself with extended comments now.  But I will here quote my first line: "David Ball’s article merits a place on any Top 10 list of must-read pieces concerning the Supreme Court's modern sentencing jurisprudence."

June 12, 2009 at 05:59 PM | Permalink


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More lying lawyer propaganda garbage advocating more inscrutable complexity, more procedure (lawyer rent), and more chances to loose vicious predators, mostly on minority neighborhoods.

Instead, end all lawyer self-dealt immunities, of the vile criminal lover on the bench, of the prosecutor, of the defense attorney, of the Bronx biased, criminal lover jurors, of the parole board. After 123, the class of all future crime victims should be made whole by these biased, criminal lover cult criminals, with scienter, and subject them to exemplary damages. The class is likely to contain 100's of victims after only a short time. If three strikes is not enough to give future criminality planetary orbit class foreseeability, name another number.

That would enhance coherence far better than the above lawyer garbage propaganda. This is outrageous lawyer rent seeking, where the vicious predator gets a new trial every year going up for parole, eventually requiring three lawyers in attendance.

Posted by: Supremacy Claus | Jun 12, 2009 7:17:19 PM

"More lying lawyer propaganda . . . yada, yada, yada, . . . eventually requiring three lawyers in attendance. "


Posted by: anon | Jun 13, 2009 10:13:02 AM

Sadly, the comments to this blog should be closed. Write what you want Prof and then post relevant emails you receive.

Posted by: Close 'em | Jun 13, 2009 11:00:54 AM

I agree. I have lost my desire to post comments, only to suffer ad hominem attacks.

bruce cunningham

Posted by: bruce cunningham | Jun 13, 2009 1:18:13 PM

Try being more lawyerly, less third gradely.

As people here would like to see the Comments closed, so the public would like to see the lawyer profession closed.

Posted by: Supremacy Claus | Jun 13, 2009 2:44:47 PM

Prof. Berman, I agree that you stop allowing all to respond. SCOTUS blog had do that as well. As long as nutcases like SC are able to post their screed and nonsensical diatribes, it's no long productive to comment.

Posted by: anon 3 | Jun 13, 2009 3:47:06 PM

I would be saddened if you were to turn off commenting.

Posted by: Soronel Haetir | Jun 13, 2009 4:51:34 PM

Anon 3: "Nutcase?"

I am not the one who believes that minds can be read, that rare accidents can be foreseen, that the truth can be determined by using the gut feeling of 12 strangers off the street, after any with knowledge has been excluded. I do not force anyone to model their conduct after a fictional character, with the personality of Mickey Mouse, but who is really lawyer code for Jesus Christ in violation of the Establishment Clause. I oppose all legal immunities because none of you lawyer can be proven to speak with the voice of God.

You are the ones that accepted these psychotic delusions, as children accept Santa Claus, not at age 6, but at age 26, in law school. You allowed people to indoctrinate you into these psychotic delusions.

Is it that hard to explain why every goal of every law subject is in failure? No. Lawyer doctrines are psychotic. The people in total control of the three branches of government are cuckoo.

Posted by: Supremacy Claus | Jun 13, 2009 5:10:28 PM

Doug, next weekend I am attending the North Carolina criminal defense lawyers conference and will be handing out some materials on sentencing issues. The moderator of the conference has asked folks to share with the audience the web addresses of blogs that we read regularly. I need to be candid with you and say that I am very hesitant to suggest that people read your blog unless they don't mind vicious attacks on their integrity. That makes me sad.

best regards

bruce cunningham

Posted by: bruce cunningham | Jun 13, 2009 5:24:24 PM

Bruce: Great opportunity for a quick research study. On line, at meals, in the bathrooms, anywhere, say this, "Can you say the V word?" See if any lawyer, even a prosecutor, can say it out loud. You should notify the local 911 operator to stand by in case of simultaneous lawyer vapors. Tell the operator to not worry, however, none will ever say that word, anyway. Ask the lawyers to mouth it silently. None can do that either.

The lawyer will never willingly end the human sacrifice of the crime victim on the altar of lawyer rent seeking.

Posted by: Supremacy Claus | Jun 13, 2009 5:52:34 PM

I'm with Soronel. I look forward to the comments and would miss them were they curtailed.

Beyond that, I don't know of any popular blogs that don't attract trolls.

Posted by: John K | Jun 13, 2009 6:18:10 PM


Conference attendees must be made of weak character if remote repetitive drivel will cause them to pass up useful information. How is an attorney to deal with a disruptive client if they can't evet handle an unseen tormentor who is easily ignored?

And Prof B, afaict you are the only member of the law professor's blog network to regular receive comments. They might not be from other professors, but you do have a valuable little community here.

Posted by: Soronel Haetir | Jun 13, 2009 7:14:16 PM

A week ago I pleaded a defendant guilty to first degree murder. The family members of the victim spoke eloquently to the Court about the pain and suffering caused by their mother's death. The victim was a wonderful lady who did not deserve to die. The victim's son testified about how much the victim would be missed. Everyone in the courtroom, including me and the rest of the defense team, were moved to tears by the stories we heard of the victim's life and how it ended too soon.

bruce cunningham

Posted by: bruce cunningham | Jun 13, 2009 7:41:45 PM

I must admit that I too have grown wearisome of Supremacy Claus. He/she is obviously an intelligent person with something to say. I like that. But the constant beating of a dead horse is in itself perverse. I have met trolls before but in all honestly never one with such a relentless one-track mind.

I also think it would be sad if the comments were closed. But I totally "get" where Bruce is coming from as a professional myself.

Perhaps it might be possible to institute some type of filtering system where one could put a poster on "ignore."

Posted by: Daniel | Jun 13, 2009 8:14:38 PM

The defendant should have been executed many crimes ago, and there should have been no murder.

The victims's rights movement is a lawyer Trojan Horse for rent seeking. First it is ex parte testimony, not subject to cross exam. Second, it serves only to inflame during sentencing, adding no information new to anyone over age 6. Third, there will come a time when all victims have the right to their own state provided lawyer. The latter is what victim impact is about.

What about the 23 million crime victims, totally on their own. About 5 million are victims of violent crimes. About 17,000 are murdered, without due process from the lawyer immunized client. That murder figure may be a gross underestimate, since 100,000 stay missing each year.

I do appreciate your courage in uttering the V word. I hope you are OK.

People call me names for the loving criticism of the lawyer profession. Meanwhile, the lawyer has not only caused 90% of all crimes by not allowing the proper remedy for his client, he has caused the destruction of the family that exploded crime, the economic crisis, the death of manufacturing, unemployment. The lawyer is now coming after health care. The biggest troll of all, and for the entire nation, is the rent seeking lawyer, the proximate cause of every social problem so he can keep a job. Control the lawyer and 90% of social problems disappear. Our productivity triples. Our development and innovation explodes by an order of magnitude.

You left wing zealots and name callers should try to not age. Come 40, an organ will fail every 5 years. There will be no new drugs, no specialists, no expensive care of any kind.

I am putting a curse on the lot of you. You will be in pain and sliding into the next world. Your doctor, if you can find her, will say, nothing more can be done. All lawyer decided pre-authorizations have been denied. At that sickening moment, you will remember only the name of the Supremacy, and his motto, "Thank the lawyer."

Posted by: Supremacy Claus | Jun 13, 2009 9:34:00 PM

This is a very good article. I would differ with one conclusion-- that the Apprendi revolution began when Apprendi did his acts. I believe that the Jones case began the revolution. And, in Jones the component: "charged in the indictment" is part of the jurisprudence.

I spent a bit of time reading this article. Prior to this I had not focused on these indeterminate sentencing states and the power given to parole boards.

This is my favorite website. Keep up the good work. I am sometimes perplexed about the rent seeking component of the law profession. It seemed like I was always paying rent. I hope that none of the contributors above will cease reading or contributing. I have possibly offended others and for that I apologize.

Posted by: mpb | Jun 13, 2009 10:07:49 PM

MPB: Thanks for the opportunity to review rent seeking.

This article can take you from the very simple to the advanced math of this economics theory, the best theory that explains anomalous lawyer decisions, including most Supreme Court decisions. It is totally non-partisan. So the biggest criminal lover is Scalia, the most conservative Justice. That strange effect can only be explained by the generation of lawyer jobs, after guidelines dropped crime by 40% and eliminated many lawyer jobs.


The easiest way to understand rent seeking is to cite its opposite, profit seeking. Productive people here take a product, or service, add value, by skill and effort, and resell them at a higher price for a profit. So the apartment rent is not rent seeking it is profit seeking. Someone went to a lot of trouble to provide shelter. You are better off paying for their profit than trying to build your own. Someone pays your profit from the skills you offer to the buyer. Taxes that provide a road, police protection, school? They are profit seeking. Government provides profit in the form of services that no one else could because of the size and cost. We get together in government and launch a space rocket. No private entity could, until the technology has developed. Space launches are profitable.

In rent seeking, with its unfortunate, obsolete use of the word, rent, an oil company hires a lobbyist for $1 million to pass a law granting it $100 million in subsidies. No oil comes from that law. Every penny has come from the labor of the taxpayer, and the latter gets nothing back. The sole benefit is to not go to jail for refusing to pay taxes, or shot by federal thug for refusing to go to prison. Here is what's worse. The other oil companies see this. They feel stupid risking life, limb, and $billion investing to find oil in Grossoutkistan, to make the same $100 million profit the hard way, by acting like an oil company and providing oil. The other oil company then hires the same lobbyist to pass a subsidy for itself. Rent seeking is contagious, and spreads like a disease.

The rule of law has tremendous value to add. It is an essential utility product. Turn it off and you are in Fallujah, spending all time and effort providing for personal survival, doing nothing else of any use. The lawyer cares about the rule of law only to the extent it provides and increases lawyer jobs, by valueless procedures and lawyer gotchas and their defenses, all a form of bad faith. So rent seeking is really armed robbery of the taxpayer and consumer. If you do not pay it, an armed agent of the lawyer will shoot you. If federal marshals do not have the firepower to persuade, Army Airborne will show up to help you pay. That makes the lawyer profession a criminal syndicate with control of the three branches of government. That intellectually and morally justifies just about any form of public self-help. I suggest litigation to begin. Give the system a chance to end the criminal syndicate's oppression and armed robbery. Next would come a boycott of the cult criminals by all service and product providers. Next would come a strong executive who would end the oppression of the cult criminals by arresting the hierarchy, giving them a fair trial for an hour, and then summarily executing all of them. Lastly, violence by the public. To deter.

Posted by: Supremacy Claus | Jun 13, 2009 11:13:11 PM

Three points.

First, this is Doug's blog, and I'm sure he has already considered the questions raised about insulting or preposterous comments. Evidently, he is of the "let a thousand flowers bloom" school. For such as it may be worth, so am I. The most effective way to deal with unworthy comments is, generally, to answer them, not ban them, much less ban all comments.

Second, for those who understandably find one commenter or another too much to take, there is an easy answer: the scroll button.

Third, and with apologies for being somewhat repetitive, if there be a need for a solution, ending the comments section altogether seems overbroad. Wouldn't it be better just to require commenters to use their real names? This is not a full solution, but my experience is that when people have to sign what they write, they tend to be less insulting and more circumspect.

Posted by: Bill Otis | Jun 14, 2009 8:37:49 AM

Bill: The SC is a fictional character. That should be no problem with the lawyer. The law is filled with constructive concepts, including a fictional character, the reasonable person. The latter is unlawful. It violates procedural due process by being arbitrary and indeterminate ahead of misconduct and fails to give proper notice. Second, it violates the Establishment Clause, by being lawyer code for Jesus Christ. The word, reason, means best guided by the New Testament, the story and words of Christ.

Now if I had said, the lawyer is an agent of the Trilateral Commission and promotes its interests above that of the public, no one would be upset. There is no evidence for that claim. The most upsetting aspect of the comments is the evidence the lawyers know about.

Doug asked about the author of this character. He received personal information and has addressed private remarks to the author. He has not accepted the offer of a full resume. It is meaningless. The information is the specifics on a stranger, means nothing to him, and makes no difference. The comments stand on their own. The evidence for them is what bugs lawyers. Say, someone uses the information to kill the author. It makes no difference. The evidence remains and cannot be put back in a bottle. Worse, the evidence is from high school World History and Economics. There is no original research. The high school evidence clashes with the lawyer indoctrination that erased it.

I will gladly send you all the author's personal information. It is meaningless, useless data on a stranger. You may use it to personally attack and destroy him. So what. It changes nothing about your knowledge of the failure of the criminal law and about lawyer self-deluded denial of it.

Posted by: Supremacy Claus | Jun 14, 2009 11:08:28 AM

Also sick of the troll characters on this blog. Supremacy Claus hates lawyers and thinks they're incurable rent seekers. And every blog post provides further proof of his/her/its opinions and further examples of rent seeking. We get it, and it's tiresome. Perhaps we should just be thankful that a similarly persistent CriticalRaceTheoryBot hasn't decided to remind us several times a day about how "law" is just a deception to hide racial oppression and that CapitalismBot hasn't decided to inform us several times a day that every mention of the Sentencing Commission is a reminder of the bloated regulatory state.

People with their own tangential axes to grind should simply start their own blogs instead of trolling other blogs to chastise their authors for failing to consider the implications of said trolls' pet causes.

More generally, upwards of 90% of the commentary on the blog is Supremacy Claus and the occasional but recurrent knee-jerk pro-defendant and pro-prosecution commenters. I'd favor blocking commenters or, alternatively, just blocking the worst offender's (Supremacy Claus's) IP address.

Posted by: anonymous | Jun 14, 2009 2:13:07 PM

Folks, what originated this thread was an article on Apprendi which deserves serious discussion. there are 20 comments on the thread, one of which has anything to do with Apprendi. Something is wrong with this picture.

bruce cunningham

Posted by: bruce cunningham | Jun 14, 2009 2:30:16 PM

Anon: Sick of the biggest troll of all, the lawyer. It immunizes crime, destroys the economy, allows massive terror attacks on our shores, destroys the black then the white family, empowering everyone freaky, kills employment, destroys manufacturing. Now it is on the rampage to destroy health care. This biggest troll of all must be controlled with lawyer control laws. It must be excluded from all benches, all legislative seats, all responsible policy positions in the executive.

This loving criticism will fall on the deaf ears of the old people in the law. I am addressing the young people in the law only.

Posted by: Supremacy Claus | Jun 14, 2009 5:00:43 PM

Spare the comments, ban the trolls.

Posted by: Michael Drake | Jun 15, 2009 4:41:47 PM

No troll is bigger nor more vicious than the lawyer is to the nation. The lawyer is the cause of all social, economic, and crime problems.

Posted by: Supremacy Claus | Jun 16, 2009 6:30:10 PM

I think that this thread is proof enough, Prof. Close the comments.

Posted by: Close 'em | Jun 16, 2009 11:37:44 PM

Sounds like everyone is down on attorneys. They are the ones who keep our country focused upon that which is law. We together create the laws and the attorneys are there to protect us when someone else has 'broken' a law. I do not see lawyers are the troll, but as the 'good' witch of the North. Instead of back biting, working together to form the more perfect union is much preferred.

Posted by: Marcia | Jul 24, 2010 11:33:54 AM

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