W. David Ball (Stanford University - Stanford Criminal Justice Center) has posted Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment (Columbia Law Review, Forthcomin) on SSRN. Here is the abstract:
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.