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April 1, 2014

"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"

The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.

In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.

April 1, 2014 at 12:45 PM | Permalink


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Am I reading this right? The cliff bride could not argue this because there was no fact finding by the judge that triggered a mandatory minimum. Therefore neither party could appeal the sentence on any MM grounds. This despite the judge's fact finding (no remorse) that he found to deny her probation and sentence her to 30 years.


On the other hand, the judge did find facts (no remorse) that were grounds to deny probation and probation was the floor. Indeed, if she knew no remorse could prove to be 30 years worth of an element, she could have provided some evidence in her favor at sentencing, like a psychologist or something.

So, which is it?

Posted by: George | Apr 1, 2014 5:00:10 PM

that's our TWO-FACED gov't at it's best!

Posted by: rodsmith | Apr 4, 2014 4:34:23 PM

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