COLUMBIA LAW REVIEW
VOL. 109

JUNE 2009

NO.5

ARTICLES
HEINOUS, ATROCIOUS, AND CRUEL: APPRENDI,
INDETERMINATE SENTENCING, AND THE MEANING
OF PUNISHMENT
W David Ball*
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 pa1'Ole 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
offact for all components of the parole release decision. I argue for a reading
of the Apprendi rule more consonant with fustice 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 -rt'tributive and rehabilitative components, they delinertte where-and, more

* Research Fellow, Stanford CrirninaIJustice Center, Stanford Law School. I've been
extremely blessed with supportive, curious, and inspiring tcachers and colleagues at
Stanford and Santa Clara law schools. I'm particularly grateful to my co-clerk Meredith
Osborn, to my colleagues in the Stanford Fellows program (especially Andy eoan) for their
rigorous and spirited review of an early draft of this Article, to Stephanie Wildman and the
Santa Clara Center for Social Justice and Public Service for giving me the time and
financial support to finish a large chunk of this Article, to my wife for her critical help in
shaping the argument and the Article, and to my young sons for the joy that sustains me.
As inadequate a token of my gratitude as this may be,] would like to dedicate this Article to
JudgeJohn T. Noonan,Jr., and Professor Robert Weisberg. ] hope you both, in some ways,
find this superfluous-that you know how much I value you as mentors, teachers, and
friends. Thank you for all the opportunities you've given me, and consider this a down
payment on a career that will owe so much to both of you. Know that I will endeavor to
pass on to my students and colleagues your rare combination of humanity, integrity, and
intellect.
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[Vol. 109:893

importantly, why-the Apprendi jury right applies to some facts and not to
others. loxploring 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.

INTRODUCTION ., .....-~~-.-:-~:~-:~-. . . . . . . . . . . . . . . . . . . . . . . • . . . . . . : :..
' - --sg5-·---~~---~~-

I.

UNSUITABLE LIFE SENTENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

906

A.

Claritying Terms: Indeterminate Sentences Are
Sentences with Discretionary Parole Release. . . . . . . . . .
B. California Uses Both Determinate and Indeterminate
Sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. California's Parole Release Process ... . . . . . . . . . . . . . . . .
1. Parole Suitability Basics. . . . . . . . . . . . . . . . . . . . . . . . . .
2. The Use of Commitment Offense Facts in
Suitability Determinations. . . . . . . . . . . . . . . . . . . . . . . .
3. Deferential Review...............................
D. The Result: Prisoners Serve Much Longer than Their
Enumerated Term of Years.

11.

WHICH BODY FINDS WHICH FACTS? . . . . . . . . . . . . . . . . .. . . . . . .

A. Parole Discretion and Unsuitable Life Sentences. . . . . .
1. Parole Boards Are Given Authority to Determine a
Wide Range of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Parole Board Factfinding and Unsuitable Life
Sentences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Apprendi'sJury Requirement..........................
1. The Jury Finds Retributive Facts, the Judge Finds
Public Safety Ones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Apprendi Factfinding and Unsuitable Life
Sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Reconciling Apprendi and Parole Due Process:
Indeterminate Sentences Serve Split Purposes
1. Who Should Find Mixed Retributive/Public Safety
Facts?...........................................
2. Relabeling Desert as Public Safety. . . . . . . . . . . . . . . .
111.

SENTENCE LIMITATIONS . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . .

A. Parole Cases and the Expectancy of Release. . . . . . . . . .
1. The Liberty Interest in Parole. . . .. . . . . . . . . . . . . . . .
2. The Liberty Interest in Parole Applied to
Unsuitable Life Sentences. . . . . . . . . . . . . . . . . . . . . . . .
B. Apprendi, the Statutory Maximum, and the Enumerated
Term................................................
1. The Meaning of the Functional Statutory
Maximum Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The Functional Statutory Maximum of an
Indeterminate Sentence is the Enumerated Term.

906
909
911
912
915
916
918
920
920
921
921
923
923
932
935
939
942
943
944
944
948
950
950
952

2009]
3.
IV.

.

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895

HEINOUS, ATROCIOUS, AND CRUEL
Avoiding Apprendi through Changing Parole; or,
Why Does This Even Matter?
.

955

THE STANDARD OF PROOF AND THE DEFINITION OF AN

957
OFFENSE
.
A. Parole's Standard of Proof
. 958
_ . _.._
L_.R<lrol.~.:>ui\.;l!>ili!ris Reviewed for "Some
.. _"'"
Evidence."
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
2. Applying "Some Evidence" to Unsuitable Life
Sentences
. 959
B. Apprendi's Requirement of Proof Beyond a Reasonable
Doubt
. 961
I. Apprendi Defines Crimes Functionally
. 962
2. Apprendi Functionalism and Unsuitable Life
Sentences: Are Parole Board Unsuitability Facts
Elemen ts of Crimes?
. 966

V.

POLICY CONSIDERATIONS

.

CONCLUSION . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

968
971

INTRODUCTION

Apprendi v. New Jersey threw contemporary sentencing into disarray
when it held that "any fact that increases the penalty for a Clime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."l But while Apprendi's impact on
state and federal practices has been pronounced, the cases that follow it
are generally seen to contribute little to a more profound understanding
of the jUrisprudence of punishment. 2 Instead, Apprendi is seen as a for·
mal rule, applying only to a process that ends when a judge in a court·
room pronounces a sentence. 3
1. 530 U.S. 466,490 (2000).
2. Justice O'Connor decried Apprendi's rule as a "meaningless formalism" with
"several plausible interpretations of the constitutional principle on which the Court's
decision rests." Id. al539-40 (O'Connor,]., dissenting). In Blakely v. Washington, the next
major case in the line, she reiterated that it was "difficult for [her] to discern what
principle besides doctrinaire fonnalism acnlally motivates today's decision." 542 U.S. 296,
321 (2004) (O'Connor, j., dissenting). Academics have also described Blakely as "a
destructive rule in search of a sound principle." See Douglas A. Bennan, Conceptualizing
Blakely, 17 Fed. Sent'g Rep. 89, 89 (2004) [hereinafler Berman, Conceptualizing Blakely]
(explaining views of other commentators).
3. The Apprendi literature focuses only on decisions a judge makes about the
prescriptive sentence to be imposed, not on the actual sentence that is, in fact, imposed.
Laura Appleman's recent article is the sole exception. See Laura I. Appleman, Retributive
Justice and Hidden Senlencing, 68 Ohio St. LJ. 1307 (2007). Appleman tentatively
concludes that Blakely does not affect the workings of parole proceedings, id. at 1372-73,
but suggests that an expansive reading of Blakely might aJfect parole, id. at 1373-76. I
discuss Appleman's article in greater detail infra notes 175-] 78 and accompanying text.
Several scholars have raised the parole issue in papers that focus on other aspect.s of
sentencing, however. See, e.g., Kevin R. Reitz, The New Sentencing Conundrum: Policy
and Constitutional Law at Cross-Purposes, 105 Colum. L. Rev. 1082, ]094 (2005) (asking

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I challenge those views in this Article. Apprendi is not a formal doctrine but a functional one that looks past the formal taxonomy of a criminal statute to the way it operates. Apprendi's protections are not limited to
temporal slices of the judicial process but should apply any time the jury
power is infringed, including during the substantial percentage of
____________. ~~.0..<.:;m~entenc'Cs.._!.ha~ terElin~.'C...~I1_ a p<l!:0le board's discret!ona~release decision.' Indeed, exploring the Apprendi right throughout the entire sentencing process helps clarify the nature and scope of that right. 5
I conclude that Apprendi is primarily concerned not with time served
but with punishment, defined as the stigmatic deprivation of liberty. The
jury is central not because of institutional or formal concerns, but because it expresses the moral judgments ineluctably tied to the retributive
principles at the heart of criminal law.

* * *
The Apprendi revolution began when Charles Apprendi pleaded
guilty to three weapons charges, two of which were each punishable by a
five- to ten-year sentence. 6 The judge sentenced Apprendi to an "extended term" of twelve years on one of the charges, however, based on a
finding by a preponderance of the evidence that he had acted with racial
bias, a fact triggering a hate crime sentence enhancement. 7 The U.S.
Supreme Court vacated the sentence, holding that a jury must find beyond a reasonable doubt any fact that increases the penalty a defendant
faces beyond the "statutory maximum."8 As I discuss in greater detail in
Parts II and IV, the reasons for the Supreme Court's finding have to do
with Apprendi's view that punishment involves both the stigma of wrongdoing and the restriction of liberty: Only the jury may make such a stigmatic finding, and this finding must be made conclusively, beyond a reasonable doubt.
After Apprendi, the Supreme Court was chiefly concerned with figuring out the circumstances under which the new rule would apply. The
Court first decided in Ring v. Arizona that Apprendi's holding barred a
whether Blakely applies "[i][ state law presumes that prisoners will be released [into parole]
at a certain time in the absence of adverse findingsn);]on Wool & Don Stemen, Aggravated
Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems, 17
Fed. Sent'g Rep. 60, 68 0.27 (2004) (explaining use of parole in New Jersey indctenninate
sentencing) .
4. I use the phrase "discretionary release" to postpone discussion of a key issue to
which I return infra Part I.A: the way in which unclear usage of the term "indeterminate
sentencing" has muddled the Apprendi doctrine. For an exposition of this Article's
terminology, see infra notes 67-68 and accompanying text.
5. I will argue that Apprendi is not a "sentencing" case at all: It is a case about the way
facts must relate to criminal punishment. See infra text accompanying notcs 224-226.
6. The irony is not lost on the author that the case reestablishing the jury's central
role in American sentencing did not, itsclf, involve a jury.
7. 530 U.s. at 468-69. 471.
8. Id. at 490.

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HEINOUS, ATROCIOUS, AND CRUEL

897

judge from finding aggravating facts justifying the death penalty'" It then
turned to the kind of cases that have since come to dominate the Appnmdi
line: those which tease out the meaning of the statutory maximum. Here
the issue is not so much what Apprendi "means" as when it applies. It is
this focus which has given Apprendi its formalist reputation: The cases
turn on technical readings of sentencing guidelines and statutes and deal
_·_-----liweWiilitlie-goals -imd interests ofthe-jufy-iignL"-Tne two serriTnalcases---··------·--·-----are Blakely v. Washington lo and United States v. Booker. ll
Blakely held that the statutory maximum for a given crime is not necessarily the maximum specified in the statute (what I call the taxonomic
statutory maximum), but the sentence a judge is bound to impose based
on the facts in the jury's conviction or the offender's plea (what I call the
functional statutory maximum). Ralph Blakely's kidnapping of his wife
was a felony with a maximum term of 120 months. Washington State's
binding guidelines specified a range of forty-nine to fifty-three months
for the kidnapping. Blakely was sentenced to ninety months, however,
because the judge found an aggravating fact-that Blakely had acted with
"deliberate cmelty. "12 Even though fifty-three months and ninety months
are both less than 120 months-the maximum in the statute-the
Supreme Court nevertheless vacated the sentence, holding that "the relevant 'statutory maximum' is not the maximum sentence ajudge may impose after finding additional facts, but the maximum he may impose without any additional findings." 13
Booker used Blakely's definition of the (functional) statutory maximum I4 but is most notable for its remedy: making the Federal
Sentencing Guidelines advisory.1s Advisory guidelines pose no Apfn-endi
problem; higher sentences no longer require certain findings of fact, so
nonjuries may find them. The State of California subsequently followed
tlle Supreme Court's lead: Mter Cunningham v. California invalidated
California's Determinate Sentencing Law (DSL) on Apprendi grounds,16
the California state legislature made its sentencing guidelines advisory as
well. l7 It is the technical simplicity of this Apprendi compliance move,
and the cynicism it engenders, that has contributed to the view that
Apprendi means very little.
9. 536 U.S. 584, 609 (2002) ("Because [the] enumerated aggravating factors operate
as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment
requires that they be found by ajury." (quoting Ap/mmdi, 530 U.S. at 494 n.19)).
10. 542 U.S. 296 (2004).
11. 543 U.S. 220 (2005).
12. Blakely, 542 U.S. at 298-300.
13. Id. at 303-04.
14. Booker, 543 U.S. at 226-27 (Stevens,.!-, opinion of the Court) ("We hold that ...
the Sixth Amendment as construed in Blakely docs apply to the Sentencing Guidelines.").
15. Id. at 245 (Breyer,]., opinion of the Court).
16. 549 U.S. 270, 293 (2007).
17. See infra note 87 and accompanying text.

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The end result is that Apprendi's rule applies only to binding systems,
and only to facts relating to the commitment offense-that is, the crime
for which the inmate was charged, sentenced, and committed to prison.
Apprendi does not require a jury to find prior offenses,18 nor does it require a jury to find facts justifying mandatory minimum sentences. 19
. Non..':-",f tlJ.':. cases in th~~endi lin..':.. has dealt with indetermin~te ._.
sentences,20 however, and none has dealt with any finder of fact beyond
the judge.
As a practical matter, because Blakely and Booker invalidated such
huge swaths of sentencing practice, they, not Apprendi, became the go-to
cases for judges and lawyers who needed to apply Apprendi to a given case.
Ironically, then, Apprendi's contribution to our understanding of sentencing got lost even as its holding became more legally significant. All that
seems to matter after Blakely-and, to an even greater extent, after
Booker-is an almost mathematical focus on the structure and phrasing of
sentencing guidelines themselves. 21 This focus on statutory maxima has
left an enormous hole in the jurisprudence: We now have a rule that is as
clear as it is uncompelling. None of the cases has explained fully, for
example, why the shift from binding guidelines to advisory ones serves to
insulate nonjury factfinding from an Apprendi challenge. We know for
certain that Apprendi does not apply in advisory situations, but it is hard to
explain why dlat rule is as it is.
This Article is, in part, my attempt to draw out a rationale behind
Apprendi's rule, a rationale implicit in Apprendi and its predecessors: The
jury must find facts leading to punishment, since punishment conveys a
morally stigmatizing judgment about the commitment offense. The
problem is that the moral dimension has not presented itself clearly in
any of the post-Apprendi cases. But what if the nature of given facts, or the
way they were put to use, were crucial in determining whether the jury
had to decide those facts beyond a reasonable doubt? Such is the case
with sentences terminating in discretionary parole release.

18. Apprendi left in place Almendarez-Torres v. United Stales, which rejected an argument
that recidivism must be treated as an element of the offense because it increases the
potential maximum sentence. 523 U.S. 224, 246--47 (199S).

19. Harris v. United States, 536 U.S. 545, 565 (2002) ("[N]othing in this history
suggests that it is impermissible for judges to find facts that give rise to a mandatory
minimum sentence below the maximum penalty for the crime committed," (internal
quotation marks omitted».
20. For a discussion of the confused usages of "determinate" and "indetenninate" in
Supreme Court sentencing cases, and more workable definitions of my o\"'n, see infra Part
l.A.

21. I also note that the literature-and Supreme Court jurisprudence-has
disproportionately focused on the Federal Sentencing Guidelines, even though the
overwhelming majority of sentencing and incarceration takes place in the fifty SLales. This
Article focuses on the states; I will discuss federal sentencing cases only in passing.

._.

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HEINOUS, ATROCIOUS, AND CRUEL

899

Sentences with discretionary parole release serve two purposes: punishment and the preservation of public safety.22 An offender serves an
enumerated term of years as punishment and is then kept in prison until
he is safe to be released. In these sentences, the distinction between incarceration and the meaning of that incarceration is drawn sharply: The
enumerated term punishes and the rest of the time serves public safety.
"---------------·--Explonng-'ihecontoursof ApprenJJ.-as- appfied to these sentences"is the--"----------~ --""perfect opportunity to see why this distinction is desirable from both a
policy and a doctrinal view. If Apprendi is simply mechanical, and applies
to retributive and non retributive incarceration, then the jury must find
all facts justifying a denial of parole and the parole board is rendered
moot. Locating the Apprendi right in the jury's retributive role, however,
narrows its scope: The jUlY need only find facts expressing moral stigma.
Facts that bear primarily23 on an offender's threat to society and need for
incapacitation or rehabilitation, however, can be found by bodies besides
the jury, including the parole board.
The view that Apprendi is a mechanical rule applying only during the
judicial pronouncement of the sentence subverts the very jury power that
Apprendi established. In this Article, I focus on one specific example of
this larger phenomenon: California's practice of imposing what I call unsuitable life sentences, where the same offense which justified a parole
eligible sentence at trial is itself the reason why the parole board 24 later
finds a prisoner unsuitable for parole. 25 I focus on California for several
reasons: The state has a large number of prisoners serving sentences subject to discretionary parole release; state courts have grappled with the
unsuitable life sentence problem in a series of cases; and the parole regulations literally duplicate the elements of parole ineligible crimes.
California parole release is also presumptive, meaning that in order to
extend a term of incarceration, a parole board must find a reason not to
release a prisoner. It is this feature that allows a parole board finding of
22. For the purposes of this Article, I will lump all of the consequentialist purposes of
punishment (including incapacitation) under the rubric of rehabilitation and public
safety. The important distinction here is between retributive and nonretributive purposes
of punishment. ] do not discuss the impacts my argument has on deterrence, in part
because of my skepticism that criminal penalties can deter second degree crimes of passion
and in part because the goals of deterrence can be more readily achieved through changes
to sentencing laws, not changes to parole release practices.
23. There are "mixed" facts that bear on both punishment and rehabilitation. I will
discuss these infra Part II.C.l. The commitment offense primarily underlies the penalty
portion of a sentence, however, and inasmuch as it relates to rehabilitation, the fact'i are
often so prejudicial as to overwhelm any rehabilitative steps-positive or negative-thar an
offender has taken since entering prison. Sec infra Part lG2.
24. The name of the parole board is officially the California Board of Parole
Hearings.. Because this was recently changed from the Board of Pl'ison Temls, see Cat.
Penal Code § 5075 (West Supp. 2008), I will use the more generic term parole board.
25. Life sentences are only unsuitable where denial is based on the commitment
offense. Garden variety parole denials, where prisoners are denied parole for poor
institutional behavior, for example, are not the subject of this Article.

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COLUMBIA LAW REVIEW

[Vol. 109:893

fact to increase the statutory maximum punishment to which the prisoner
is subjected. 26 Of the 173,000 prisoners in California prisons,27 approximately 27,000 are serving life sentences with the possibility of parole. 28
Of these, around 10,000 have already served their enumerated term of
years and are eligible to be deemed suitable for parole. 29
..Mth.O.1!gh..1.h.i.LArJLc!!:.LQ.clJ~eL9.11J:;jjJif.QI.ni.!h..
thGJactic.e..Qf d~~ng.. __._.
parole on the basis of the commitment offense is by no means limited to
one state. 30 While it is difficult to characterize the variety of sentencing
systems in the fifty states and the District of Columbia, the majority of
states still impose sentences terminating in discretionary parole release,"
and the "vast majority ... have retained some form of discretionary parole release and postrelease supervision."32 Nationwide, discretionary pa26. Sec discussion infra Part IItB. Whether this argument extends to other states'
systems, then, depends on the structure of a state's parole statutes and regulations. While I
have not conducted a conclusive fifty-state survey, other states' parole s)'stems indicate that
the argument might apply there as well. See infra notes 30-42 and accompanying text.
27. Data Analysis Unit, Cal. Dep't of Corr. & Rehab., Prison Census Data as of June
30, 2007, al tbl.l (2007), available at http://www.cdcr.ca.gov/Reports.Researcb/
OffendcT_Infonnation_Services_Branch/Annual/Census/Censusd0706.pdf (on file with
the Columbia Law Review).
28. Adam Liptak, To More Inmates, Life Tenn Means Dying Behind Bars, N.Y. Times,
Oct. 2, 2005, at AI. Some of these inmates might be serving time for nonmurder
convictions prior to the passage of the DSL in 1977, but they are outside this Article's
scope. For more on the history of the DSL, see infra text accompanying note 85-87.
29. In re Criscione, No. 71614, slip op. at 9 (CaL Super. Ct. Aug. 30, 2007), available
at http://www.bayareanewsgroup.com/multimedia/mn/news/criscione_complainc091~~
07.pdf (on file with the Columbia Law Review).
30. In 2001, fourteen states reported releasing fewer than ten lifers, and eight states
reported releasing fewer than two dozen each. Adam Liptak, Serving Life, with No Chance
of Redemption, N.Y. Times, Oct. 5, 2005, at Al.
31. See Michael TonI)', Reconsidering 1ndetenninate and Structured Sentencing,
Sent'g & Corrections (U,S. Dep't ofJustice, Washington D.C.), Sept. 1999, at 1, available at
http://www.ncjrs.gov/pdffilesl/nij/175722.pdf (on file with the ColumiJia Law Reoiew)
[hereinafter Tonry, Reconsidering] ("The numbers are imprecise because systems differ so
greatly that reasonable people can disagree over which label best characterizes a particular
system."). Indeed, the latest federal review of state sentencing systems labels California a
"determinate" system and New York an "indetenninate" system, even though both states
employ sentences with and without discretionary parole relea'ie. See Bureau of Justice
Assistance, 1996 National Sunrey of State Sentencing Structures 3 (1998), available at
http://www.ncjrs,gov/pdffiles/169270.pdf (on file "ith the ColumiJia Law Reoiew)
[hereinafter 1996 National Survey] (describing classification of state sentencing systems by
guideline structure). For a further discussion ofthc tenns determinate and indetenninate,
see infra Part LA,
32. 1996 National Survey, supra note 31, at xi; see also id, at 15 exhibit 1-8 (detailing
type of postrelease supenrision available in twelve states that abolished discretionary
parole), Joan Petersilia counts sixteen states where parole boards have full release pmvcrs,
nineteen where parole boards have limited release powers, and fifteen (plus the federal
system) where discretionary parole release has been abolished. Joan Petersilia, ""Vhen
Prisoners Come Home 66-67 tb1.3.1 (2003) [hereinafter Petersilia, When Prisoners Come
Home]. Bolstering the point that categorization is difficult, however, California is listed
among the states with no discretionary parole. Id.

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HEINOUS, ATROCIOUS, AND

CR~L

901

role release has decreased as a percentage of released prisoners." But as
of 2003, approximately ten percent of prisoners were serving life
sentences (three-quarters of them with the possibility of parole),34 at a
cost of billions of dollars a year. 35 The number of these "lifers" has nearly
doubled since 1992. 36 Additionally, several other states have language
._~~i.~i~~."~()ricl~J1ti~al-=8..~()J!1.~J~~~<JE~in. the ~.'l!if()~J1ia~lJ~cler.sta.t.':'~_.
triggering an increase in penalty, and many states also consider the commitment offense in determining parole release, either explicitly39 or implicitly, through rules about the evidence parole boards are required to
review. 40 New York currently faces a lawsuit from parole eligible prisoners charging that the state parole board has an "unwritten policy of rejecting parole in most of the cases solely because of the severity of the
crime."4! Whether Apprendi might apply to these systems the way it does
to California's is beyond the scope of this Article, because the question
33. Timothy A. Hughes, Doris James Wilson & Allen J. Beck, U.S. Dep't of Justice,
Bureau ofJustice Statistics Special Report: Trends in State Parole, 1990-2000, at 1 (200]),
available at http://ojp.usdoj.gov/bjs/pub/pdfltspOO.pdf (on file with the Columbia Law
&vi>fW).
3'1. Marc Mauer, Ryan S. King & Malcolm C. Young, The Sentencing Project, The
Meaning of "Life"'; Long Prison Sentences in Context 9 (2004), available at http://www.
sentcncingproject.org/Adrnin/Documents/Publications/inc_meaningoflife.pdf (on file
with the Columbia Law Rez1iew).
35. Id. at 25.
36. Id. at ll.
37. See, e.g., Ariz. Rev. Stat. Ann. § 13-702(C) (5) (2001) ("especially heinous, cruel,
or depraved manner"); Colo. Rev. Stat. Ann. § 18-1.3-1201 (5) (j) (West 2004) (same);
Conn. Gen. Stat. Ann. § 53a46a(i) (West 2007) (same); N.H. Rev. Stat. Ann.
§ 630:5(VII) (h) (2007) (same); NJ Stat. Ann. § 2C:44-I(a)(l) (West 2005 & Supp. 2008)
(same); Wash. Rev. Code Ann. § 13.40.150(3) (i) (ii) (West 2004) (same).
38. See, e.g., Ala. Code § 13A-549 (LexisNexis 2005 & Supp. 2007) ("especially
heinous, atrocious, or cruel"); D.C. Code Ann. § 22-2104.01 (b) (4) (LexisNexis 2001 &
Supp.2008) (same); Fla. Stat. Ann. § 921.0016(3) (b) (West 2006) (same); Haw. Rev. Stat.
Ann. § 706-657 (LexisNexis 2008) (same); Idaho Code Ann. § 19-2515(9)(e) (2004 &
Supp. 2008) (same); Kan. Stat. Ann. § 214636(1) (2007) (same); La. Code Crim. Proc.
Ann. art. 905.4 (A) (7) (2008) (same); Miss. Code Ann. § 99-19-101 (5) (h) (1972) (same);
Neb. Rev. Stat. § 29-2523(1) (d) (1995) (same); N.C. Gen. Stat. § 15A-1340.16(d)(7)
(2007) (same); Okla. Stat. Ann. tit. 21, § 701.12(4) (West 2002) (same); Tenn. Code Ann.
§ 39-1~204(i)(5) (2006) (same); Utah Code Ann. § 76-5-202(1)(r) (2003 & Supp. 2008)
(same).
39. See, e.g., Ga. Code Ann. § 42-9-40(a) (1997) ("severity of current offense"); Haw.
Rev. Stat. Ann. § 706-669(8) (LexisNexis 2007) ("nature and degree of the offense"); Ind.
Code Ann. § ll-I3-3-3(h)(I) (LexisNexis 2003 & Supp. 2007) ("nature and circumstances
of the crime"); Mont. Code Ann. § 46-23-202(1) (2007) ("circumstances of the offense");
N.M. Stat. § 31-2J-10(A)(2)(a) (1978 & Supp. 2008) (same); N.Y. Exec. Law § 259i(l)(a)(i) (McKinney 2005 & Supp. 2008) ("seriousness of the offense"); R.I. Gen. Laws
§ 13-8-23(3) (2002) ("circumstances surrounding his or her offense").
40. See, e.g., Mo. Ann. Stat. § 217.690(7) (West 2004 & Supp. 2008) (including victim
participation in parole hearings); N.H. Rev. Stat. Ann. § 651-A:8 (2007) (allowing attorney
general to present evidence at hearings); Utah Code Ann. § 77-27-9 (2003 & Supp. 2008)
(including victim participation in parole hearings).
41. Sam Roberts. Violent Felons Move Forward with Lawsuit over Their Rights to
Parole, N.Y. Times, Dec. 30, 2007, Metro Section, at 21. A lawyer for the inmates argues

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depends in part on the degree to which parole regulations are binding,
whether facts about the commitment offense are sufficient in themselves
to deny parole, and whether an inmate has a statutorily created liberty
interest in the granting of parole 42

* * *
California has four penalties for murder. Two include the possibility
of discretionary parole release: second degree murder (fifteen years to
life) and first degree murder (twenty-five years to life).43 Offenders serving either of these sentences are to be granted parole 44 after fifteen or
twenty-five years, respectively, unless the parole board finds them unsuitable for parole by "some evidence."45 The other two murder sentences do
not include the possibility of parole and are to be imposed if the jury
finds certain statutorily enumerated special circumstances: the aptly
named life without the possibility of parole (also known as LWOPP) and
the death penalty.46 One special circumstance in California is that a murder was "especially heinous, atrocious, or cruel, manifesting exceptional
depravity."47 If a murderer is sentenced to a parole eligible sentence, it
necessarily means the jury did not find the murder heinous, atrocious, or
cruel beyond a reasonable doubt, since that is a special circumstance
mandating a sentence of LWOPP or death.
According to the California parole statute, the parole board must
examine the prisoner's commitment offense when it analyzes his potential threat to puhlic safety.48 One of the commitment offense factors determining unsuitability for parole is whether the commitment offense was
heinous, atrocious, or cruel. 49 A parole board can deny parole indefithat "a large number of people who have exemplary prison records [are] being denied
parole just because of the nature of their crime." Jd.
42. For example, Florida repeats some language about the heinousness of the crime
in its murder statute and its parole release regulations. Sec Fla. Admin. Code Ann. r. 2321.010(5)(a)(I)(d) (1998) (listing "bru~,1 or heinous behavior" in offense as example of
aggravation justifying beyond-matrix sentence). But New York does not permit denials of
parole based solely on the commitment offense. See Edward R. Hammock & James F.
Seelandt, New York's Sentencing and Parole Law: An Unanticipated and Unacceptable
Distortion of the Parole Boards' Discretion, 13 St. John's J. Legal Comment. 527, 537
(1999) (ciLing Maye v. Russi, N.Y. LJ., Feb. 5, 1996, at 28).
43. Cal. Penal Code § 190.2(a) (West 2008).
44. Id. § 3041 (b) (West 2000 & Supp. 2008) (requiring board La ",eL a relea,e date
unless it determines that ... public safety requires a more lengthy period of incarceration"
(emphasis added».
45. E.g.. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) ("[T]he requirements of
due process are satisfied if some evidence supports the decision by the plison disciplinal)'
board ...."). For a detailed discussion of the Hill standard, see infra notes 3'10-3·15 and
accompanying text.
46. Cal. Penal Code § 190.2(a) (West 2008).
47. 1d. § 190.2(a)(14).
48. Id. § 3041(b) (West 2000 & Supp. 2008).
49. Cal. Code Regs. tit. 15, § 2402(c) (I) (2005).

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HEINOUS, ATROCIOUS, AND CRUEL

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nitely on its own finding that the murder was heinous, atrocious, or
crue!.SD
So we see the problem. DUling the trial, Apprendi requires the jury
to find the fact that the crime is so heinous, atrocious, or cruel that the
offender does not deserve parole. sl Ajudge cannot make this finding if a
_~ __ ~~ ~~~_._ ju!Y..2id n()!:".~ ..!?.':'! ..g,~.j>a2:.()le_~1J()<lrt!£("n.ci~!lJ'.paE()I(:'Xo.Ll~(:,itl()lIS
murders, even if the jury did not reach the issue or the jury explicitly
found otherwise. 53
In practice, the existence of the heinous, atrocious, or cruel catchall
means that almost no first and second degree murderers are ever released. A recent case from a California state court reviewed almost 2,700
parole denials and determined that the parole board found the commitment offense heinous, atrocious, or cruel in each and every case. S4 Statewide, only about one percent of parole eligible prisoners earns release
each year. 55
The dysfunction in the California parole system is more than just an
administrative problem, however. It raises some deeper questions at the
heart of criminal procedure. Who gets to decide what when it comes to
punishment? Why is the parole board deciding about the wrongfulness
of crimes? Why is the parole board, and not the jury or judge, deciding
anything about the commitment offense at all? The contours of these
policy problems map precisely onto Apprendi's constitutional concernsso not only does an exploration of Apprendi via parole teach us about
Apprendi, exploring parole via Apprendi teaches us about parole.

* * *
State and federal judges have cast about for legal rationales permitting them to overturn unsuitable life sentences. The problem is that parole is currently governed by an underdeveloped and confusing series of
due process cases that is badly in need of review. Almost every limitation
on parole board decisionmaking depends on a state's parole statute. Due
process itself does not bar a parole board from considering any facts the
50. [n re Dannenberg, [04 P.3d 783, 802-03 (Cal. 2005) (finding sufficient evidence
for Board's determination that defendant's crime was "especially callous and cruel").
51. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("[A]ny fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury,
and proved beyond a reasonable doubt.").
52. For example, ajudge cannot impose a statutory sentence enhancement for use of
a firearm unless the fact was '"alleged in the accusatory pleading and either admitted by the
defendam in open court or found to be true by the trier of fact." Cal. Penal Code
§ 12022.53UJ·
53. See discussion infra Part I.C.3.
54. In re Criscione, No. 716[ 4, slip op. at I (Cal. Super. Ct. Aug. 30, 2007), availahle
at http://wwvv.bayareanewsgroup.comimuitimedia/mn/news/criscione_complaint~0913
07.pdf (on rile with (he Colmnhia Law Review).
55. Sasha Abrarnsky, Barred for Life, SF Wkly., Aug. 15,2007, at 16 (citing California
defense attorney).

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board deems relevant to its decisions, including the commitment offense. 56 Nor must the parole board find facts beyond a reasonable doubt:
"Some evidence" is enough. 57 A prisoner has no inherent liberty interest
in parole release,58 but state parole statutes can create that interest. 59
(Some recent Supreme Court prison administration cases, however, have
rej ec!ed s.~tut()Ii.IL<:I"~<lte_tl_!i?~r-tLiIlter~s.ts._<lIltl.I<:l(}..l<(}_nlr.t()~leil~~e
r-cIl!
nature and weight of the deprivation involved.60) None of the due process cases limit~ the parole board's authority to its core institutional competence-measuring an offender's threat to public safety-and parole
boards can therefore find facts that sound in both retribution and
dangerousness.
Cases using due process analysis to overturn unsuitability determinations are, accordingly, rare,61 but a few recent cases have so held. The
Ninth Circuit found that a prisoner's liberty interest in parole ripens if
she has been denied parole based on an unchanging factor. 62 The
California Supreme Court has also recently held that the state parole statute requires a finding that the commitment offense is some evidence of
present dangerousness-not merely that it provides some evidence of an
unsuitability factor. 63
While these cases might yield the desired result, an Apprendi-based
limit would be more clearly grounded in the Constitution, would more
closely align with justifications for sentencing, and would allow the court
to address the problem of unsuitable life sentences directly. Courts have
declined to use this solution, however.64 Perhaps this is due to the
Apprendi line's formalist reputation, as judges are loath to extend
Apprendi beyond the "formal" context of judicial sentencing. 65 Another
barrier could be the misapprehension of how Apprendi and Blakely idiosyncratically define the statutory maximum punishment: Sentences with
56. See discussion infra Part II.A. L
57. See discussion infra Part N.A.l.
58. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)
("There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."); see also infra notes 262-267 and
accompanying text.
59. See discussion infra Part IILA.I.
60. See discussion infra Part IILA.I.
61. For a discussion of recent cases overturning parole board decisions on these
grounds, sec infra notes 161-163 and accompanying text.
62. Ha}ward v. Marshall, 512 F.3d 536, 546-47 (9th Cir. 2008) (finding Governor
violates defendants' due process rights by relying on "stale and static factor" when denying
parole). The U.S. Supreme Court has not dealt with the unsuitable life sentence issue.
63. In re Lawrence, 190 P.3d 535, 553 (Cal. 2008) ("[T]he relevant inquiry is whether
some evidence supports the decision . .. that the inmate constitutes a current threat to
public safety, and not merely ... the existence of certain factual findings.").
64. Sec discussion infra note 309 and accompanying text.
65. Sec infra text accompanying notes 224-226 (questioning whether Apprendi is
really a ··sentencing" decision at all).

.0___0_

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905

presumptive parole release have statutory maxima of the enumerated
tenn of years, not life. 55
Ultimately, Apprendi must be understood to bar a parole board from
encroaching on the jury's power, but its application should be limited
only to those facts that justify continued punishment. A mechanical ap.~.. ~.~~~~~.~.~.~~ ...~.l'Ji~atiQI!2L4PP:r:":,,di!.()1l~t~1<lt.f<liJ~.to(ji~tingllisl1])et.':"~.e.I1 .. r~tri])lltiveand .
rehabilitative incarceration, would require a jury to find all facts justifying
a finding of parole unsuitability, including those related to public safety.
This would upset well-established principles of deference in areas in
which the parole board is most competent, and it would fail to advance
Apprendi's core interests. But because sentences terminating in discretionary parole release combine retributive and rehabilitative components, they provide the ultimate test case for determining where-and,
more importantly, why-the Apprendi right applies. Exploring Apprendi in
the context of these sentences restores needed coherence to the Apprendi
right, and it provides a clear example of why different parts of a single
sentence, and different facts justifying the imposition of that sentence, do
not all serve the same purpose. Different rights and interests attach to
each.

* * *
This Article is divided into five parts. In Part I, I define the "problem" of the unsuitable life sentence: the denial of parole based on facts
about the commitment offense. The parole board's finding of unsuitability on the basis of the commitment offense is the "text" I then examine
under the Apprendi and parole due process lines of cases. In Part II, I
take a deeper look at the jUrisprudence of punishment as a means of
explaining why a jUlY needs to find certain facts and why a parole board
can find others. Part III explores whether an eligible prisoner can be
deemed "punished" when the parole board finds her unsuitable for parole. Part IV examines what, if anything, justifies the different standards
of proofjudges, juries, and parole boards use to find the same facts. Part
V discusses some of the policy considerations arising from the application
of Apprendi to parole. Woven throughout these issues are potential separation of powers and due process concerns, and questions about whether
the purpose of criminal penalties is retributive or rehabilitative.
I conclude that while Apprendi must apply to parole board suitability
hearings, it should not apply to all facts in those hearings. The Apprendi
and due process doctrines can best be reconciled by looking to the purpose of each part of a sentence that tenninates in discretionary parole
66. I will also argue that Apprendi applies under a fannal (or taxonomic) approach as
welL The legislature has distinguished parole ineligible murders from lesser, parole
eligible ones, based, in part, on whether the murders were heinous, atrocious, or cruel.
The parole board is thus both functionally increasing punishment and violating the
legislative taxonomy of degrees of murder. See discussion infra Part IlI.B.2.

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[Vol. 109:893

release. The enumerated term of years an inmate serves before his first
parole hearing-a term which depends on jury findings about the commitment offense-is punitive, and the parole board may not extend this
punishment. The second "to years" portion governing release is rehabili,
tative, and Apprendi should not bar the parole board's ability to make
~~_flJ:l!,iiJ:l,gu~l~~~J:l!_t..(Uhis~ai!J:l:~_g!~..!h:.cl~l!J:leatiJ:1g~!!l.!:
.. role of !11_e..l'.a_I()\.!:_~~___~. ~_~__ ~_
board as a rehabilitative/public safety body has one final benefit: restoring discretionary parole release as a useful tool in sentencing. If a parole
board is properly constrained to find facts about potential threats to public safety, it is an extremely effective part of the sentencing process, one
uniquely situated to determine dangerousness at the point of release. Removing punishment from the parole board's jurisdiction in the way
Apprendi suggests would give states all of the benefits of discretionary parole release as a tool while reducing the more arbitrary and capricious
aspects of its administration.
I.

UNSUITABLE LIFE SENTENCES

Indeterminate sentences are sentences terminating in discretionary
parole release. California, which uses a mixture of determinate and indeterminate sentencing, grants release to indeterminately sentenced prisoners after they are found suitable for parole. In practice, however,
California's parole boards rarely find prisoners suitable, as "some evidence" exists to find almost every commitment offense unsuitably heinous, atrocious, or cruel, even when juries have failed to make this finding beyond a reasonable doubt. The result is that an offense that justifies
a parole eligible sentence is found, by itself, sufficient to render a prisoner unsuitable for parole, transforming an indeterminate sentence into
what I call an unsuitable life sentence. This Part explores California's
sentencing and parole release process to map the contours of the unsuitable life sentence problem.
A. Clarifying Terms: Indeterminate Sentences Are Sentences with Discretionary
Parole Release

The time an inmate spends in prison is potentially subject to two
types of discretion: the judge's discretion at the point a sentence is imposed, and the parole board's discretion at the point of release. Not all
systems have both kinds of discretion. Since the Apprendi line limits some
types of discretion but not others, I use this section to define and distinguish the commonly used (and commonly confused) sentencing terms
"determinate" and "indeterminate." ClarifYing these terms helps explain
why and when Apprendi governs. In this Article, I use the term "indeterminate" to refer to sentences subject to parole board discretion at the
point of release, and "determinate" as its antonym, referring to sentences

2009]

HEINOUS, ATROCIOUS, AND CRUEL

907

where a prisoner must be released after a fixed term-no more, no less. 67
I use "advisory" to refer to systems that allow judicial discretion at the
point a sentence is pronounced, and "binding" as its antonym, referring
to a system where ajudge must impose a presumptive sentence upon conviction. Discretionary systems can be further characterized as guided/
..__ .~.~s!J:l1ct,,:~':(UEE.£'tdll1.~,,:gg!:s.t,,_c1. ral1.g"s()fter_IIis.()fyears)_()r_llngllidc:<iL______________
unstructured (making no suggestions about penalties within the statutory
range).68
Clarifying this terminology immediately resolves some of the muddier parts of the Apprendi doctrine, as the Supreme Court has often conflated these ly£es of discretion,69 using "indeterminate" to mean "advisory" and "determinate" to mean "binding" (i.e., determinative of the
outcome). In Blakely, for example, Justice Scalia wrote that
"[i]ndeterminate sentencing ... increases judicial discretion" and that
"indeterminate schemes involve judicial factfinding."7o Similarly, Justice
A1ito, dissenting in Cunningham, equated "fully discretionary sentencing"
with "indeterminate sentencing ranges," and concluded that (at the

67. These definitions follow Steven Chanenson's succinct summary: "Indetcrnlinate
systems use discretionary parole release while determinate systems do not." Steven 1..
Chanenson, The Next Era of Sentencing Reform, 54 Emory LJ. 377, 382-83 (2005)
[hereinafter Chanenson, Next Era]. Chanenson's definitions, in turn, track those used by
the Bureau of Justice Assistance: Determinate sentencing involves "a fixed leOll" and
indetenninatc sentencing involves "an administrative agency, generally a parole board"
with "the authority to releao;.e an offender." 1996 National SUIvey, supra note 31, at 1-2.
Because the federal system has used only determinate sentences since 1984, when
Congress eliminated discretionary parole release, I do not discuss federal cases beyond
Booker. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 3624, 98 Star. 1987,
2008-2009 (codified as amended at 18 U.S.C. § 3624 (2006» (indicating that prisoner is to
be released "on the date of the expiration of his tenn of imprisonment" less only time
credited for good behavior). It is confusing that federal sentencing ranges sometimes
include the phrase "X years to life," but the phrase indicates a range of determinate terms
ajudge may impose-up to life in prison-not an indeterminate sentence itself. In other
words, a federally sentenced prisoner will never get an indeterminate, fifteen-years-to-life
sentence. He might get any number of determinate sentences within that range, however:
fifteen years, life, or some enumerated term in between.
68. Chanenson, Next Era, supra note 67, at 383. The post-Booker Federal Sentencing
Guidelines are a determinate, advisory, structured system. They suggest, but do not
require, determinate sentences of years for particular commitment offense facrs.
69. The Supreme Court is in good company here. The 1996 National Survey of Scale
Sentencing Structures observed "a lack of consensus regarding the meaning of commonly
used terms" including determinate sentencing, indetenninate sentencing, and the two
types of sentencing guidelines (advisory and presumptive). 1996 National Survey, supra
note 31, at 1. Almost ten years later, Steven Chanenson noted that the labels
"indeterminate" and "determinate" were still frequently applied "imprecisely or
improperly, leading to confusion . .. [that] has become more acute in the immediate
aftermath of Blakely." Chanenson, Next Era, supra note 67, at 381-82.
70. Blakely v. Washington, 542 U.S. 296, 309 (2004).

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judge's discretion) these ranges yield a "precise sentence" at the time of
sentencing?'
There are some indications that Apprendi might not govern systems
with discretionary parole release, however. Justice Kennedy stated in his
Cunningham dissent that an indeterminate sentencing system, which re...... _~~~.~_.J?os~.!L<:\i§.<;retioIl2cryI'"I..,<lSe.:.i!'..~.()!iliJdicialagencY..1()_S!".L'!...t:<,,!ea§~.ga.t~ .
for convicted felons," would seem to be "untouched by Apprendi."""
Justice Scalia observed in Blakely that "indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule
on those facts he deems important to the exercise of his sentencing discretion" without violating the Sixth Amendment. 73
While at first blush these statements would seem to forestall the argument I raise in this Article,74 a closer examination reveals that the Justices
have conflated two different types of discretion. Indeterminate sentences
do not necessarily involve judicial faetfinding. For example, a system can
grant a judge discretion to impose an indeterminate sentence, but it
could also bind her to a particular indeterminate sentence for a given set
oEfacts. 75 Similarly, regulations might bind parole boards in their consideration of release (as in California), or parole boards might have no
guidelines or purely advisory guidelines. Justice Scalia's statement further assumes that parole must be "early release" to whieh a prisoner is not
otherwise entitled,76 even though the Supreme Court has itself twice
found that a parole scheme can create an expectancy of parole protected
by the Fourteenth Amendment Due Process Clausen Determining
71. Cunningham v. California, 549 U.S. 270, 298 n.1 (2007) (Ali to, j., dissenting)
(internal quotation marks omitted).
72. Id. at 295-96 (Kennedy, j., dissenting). Although Justice Kcnncdy "asked a
number of questions about indeterminate sentencing, parole and parole boards, parole
commissions, and parole guidelines" during ora] argument in Booker, Robert Weisberg,
Excerpts from "The Future of American Sentencing: A National Roundtable on Blakely," 2
Ohio St.]. Crim. L. 619, 633-34 (2005), his interest appears only in these two sentences in
Cunningham. The Supreme Court has offered no more guidance on exactly why and how
Apprendi could be reconciled with indeterminate sentences.
73. Blakely, 542 U.S. at 309.
74. See, e.g., Appleman, supra note 3, at 1372 (noting that this excerpt from Blakely
"seems to specifically exempt parole").
75. Note also that an indeterminate sentence need not include the possibility of life in
prison. An indetcmlinate sentence could lake the form of "five to ten years," with five
years the enumerated term and "to ten" denoting the period during which the prisoner
could be released into parole. ]n a "five to ten" sentence, an inmate could be released five
years into his sentence, but not sooner, or ten years into his sentence, but not later.
76. Blake(v, 542 U.S. at 309 ("But the facts do not pertain to whether the defendant
has a legal Tight La a lesser sentence-and that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is concerned.").
77. See Bd. of Pardons v. Allen, 482 U.S. 369, 377 n.8 (1987) (rejecting idea that
"parole is ... a matter of grace" and finding that while states are not required to establish
parole systems, and may place conditions on parole release, it is otherwise a "right");
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. I, 12 (1979) ("[T]he
expectancy of release provided in [Nebraska's] statute is entitled to some measure of

2009]

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909

whether and how Apprendi applies thus requires us to look to the features
and operations of a given parole system.?8
California's indetenninate sentences do, in fact, bind the parole
board: The board must find a prisoner suitable for release unless it finds
facts justifying continued incarceration 7 " The board is bound to release
.....................~ Pr;~£:':l~.t: <t!:t.~.~.l1is . pr~sllmptive sel1.t~I1.<:~.=!I1.~ ~.Il.ll.I11.~E<l!e.~ terl11 of
years-unless it finds specific facts justifying a longer sentence.
California's parole system therefore exhibits all of the features of the sentencing regime Blakelv found unconstitutional so
B. California Uses Both Determinate and Indeterminate Sentences

California's sentencing system is largely detenninative, but it contains a hodgepodge of indeterminate practices left over from an earlier
era. The existence of discretionary parole release in a largely determinate system represents a transitional moment in sentencing policy. Analyzing Apprendi's application to discretionary parole release is at the
center of one of Apprendi's primary issues: what criminal penalties mean.
This section provides an overview of California sentencing, focusing on
this combination of retributive and rehabilitative practices.
At the beginning of the 1970s, every state, the federal government,
and the District of Columbia used indeterminate sentencing schemes S1
California courts did not detennine the length of imprisonment; instead,
prisoners were sentenced under the Indeterminate Sentence Law to the
range of years prescribed by statute-which could be as vague as "one
constitutional protection."). The Allen Court found that, while the state has no duty to
establish a parole system, 482 U.S. at 377 n.8, parole statutes can and do creatc duties and
rights, id. at 378 n.9 ("This Court ... [has] recognized the relevance of regulations to a
determination of whether a certain scheme gives rise to a liberty interest . .. [T] he
Montana statute ... obligate[s] the Board to consider certain information in making its
parole-release decision." (internal citations omitted)). But see Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 280 (1998) (citing Greenholtz in clemency case for proposition that
"[t]he individual's interest in release or commutation 'is indistinguishable from the initial
resistance to being confined,' and that interest has already been extinguished by the
conviction and sentence" (internal citations omitted)).
78. This, too, is part of the theme that Apprendi is functional, not [annal. See infra
Parts III, IV.
79. That is, even though the application of facts to parole standards is, in some sense,
discretionary (i.e., parole boards can decide whether a given fact meets a standard), the
decision to release is governed by binding regulations. The last time the Supreme Court
issued a significant opinion about parole, in Allen, 482 U.S. 369, it made the same
distinction. Allen distinguished between the "two entirely distinct uses of the tcon
discretion," one meaning "not bound by standards set by ... authority," the other meaning
to "use judgment in applying the standards set ... by authority." Id. at 375 (internal
quotation marks omitted). In the former instance, no statute or regulation binds the
judge or parole board, and a prisoner thus has no statutorily created protected liberty
interest in release. In the latter instance, the stanue or regulation specifies the contours of
the liberty interest. See discussion infra notes 264-273 and accompanying text.
80, See supra text accompanying notes 12-13.
81. Michael Tonry, Reconsidering, supra note 31, at 1.

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year to life"-and the parole board "determined the amount of time a
felon would ultimately spend in prison."82
Indeterminate sentencing faced growing criticism in the 1970s both
nationally and in Califo rnia 83 Some critics argued that there was
evidence that parole reduced recidivism; others focused on the arbitrariof release decisions"~4I!!J~I71g<lli[()E!!i<l.'sQSLr eplaced.
nate sentences with fixed terms for most crimes,s5 declaring explicitly
that "the purpose of imprisonment for crime is punishment."86
California's determinate sentencing scheme punished offenders with
"tenus proportionate to the seriousness of the offense with provision for
uniformity in the sentences of offenders committing the same offense
under similar circumstances. "87
82. Cunningham v. California, 549 U.S. 270. 276-77 (2007).
83. See, e.g., Kate Stith & Jose Cabranes. Fear of Judging 29-36 (1998) (discussing
revolt against discretionary sentencing); Jeremy Travis, But They All Come Back 17-18
(2005) ("Reliance on the exercise of discretion by judges, corrections administrators,
parole boards, and parole officers was criticized as arbitrary, racially discriminatory, and
fundamentally unfair.").
84. See, e.g., Petersilia. When Prisoners Come Home, supra notc 32, at 65 (explaining
that those seeking to deemphasize rehabilitation sought in particular to abolish
indetenninate sentencing and discretionary parole release); David Rothman, Conscience
and Convenience: The Asylum and Its Alternatives in Progressive America 159 (1980)
(entitling chapter on parole, "A Game of Chance").
85. 1976 Cal. Stat. 5140 (codified as amended at Cal. Penal Code § 1170(a)).
invalidated by Cunningham, 549 U.S. at 274; see infra note 87 (noting change in DSL to
advisory after Cunningham decision). For the historical background of indeterminate
sentencing, see Petersilia, 'When Prisoners Come Horne, supra note 32, at 55-68.
86. 1976 Cal. Stat. 5140. The name of the Department of Corrections was, however,
changed to the Department of Corrections and Rehabilitation in an attempt to signal a
shift in the department's priorities in the opposite direction. 2005 Cal. Legis. Servo 18
(West); Sara B. Miller, California Prison Boom Ends, Signaling a Shift in Priorities,
Christian Sci. Monitor, June 20. 2005. al3; see also Cal. Penal Code § 1170(a)(2) (stating,
in section immediately following declaration that punishment is the purpose of
imprisonment, that "[t}he Legislature encourages the development of policies and
programs designed to educate and rehabilitate nonviolent felony offenders").
87. 1976 Cal. Stat. 5140. The DSL regime subjected most offenses to three possible
fixed-term sentences-a lower, middle, and upper term-rather than a broad, open-ended
prison term. See Cunningham, 549 U.S. at 277. A guilty verdict or plea resulted in the
imposition of a presumptive middle-tenn sentence unless the judge found facts in
aggravation (justifying an upper-tenn sentence) or in mitigation Uustifying a lower-term
sentence). Id. (citing Cal. Penal Code § 1170(b) (West Supp. 2006)). In 2007. however,
Cunningham v. California applied Apprendi to the DSL and declared it unconstitutional. Id.
at 274, Because the DSL gave judges "authority to find the facts that expose a defendant La
an elevated 'upper term' sentence," facts that were "neither inherent in the jury's verdict
nor embraced by the defendant's plea" and which needed only to be "established by a
preponderance of the evidence, not beyond a reasonable doubt," it violated the Appre11di
right to trial by jury. Id. Among the facts in aggravation needing to be found by a JUT)'
were "facts relating to the crime," including those "disclosing a high degree of cruelty.
viciousness, or callousness." Id. at 278 & n.7. To cure the constjtutional infirmities
identified in Cunningham, California has since made the DSL wholly a.dvisory. See Cal.
Penal Code § 1170(b) (West Supp. 2008) ("When ajudgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice of the appropriate term

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The DSL did not completely overhaul the system, however, and what
remains mixes and matches determinate and indeterminate sentencing
practices with retributive and rehabilitative goals. For example,
California continues to impose indeterminate sentences for crimes that
seem particularly reprehensible: sex offenses,s8 homicides,s9 and "three
stti k':'~::':'£feIls,:,s:!l~~lli~~ilityf,:,,:.p,,r,:,l,:,re
Ieas.':' is~ ':'':'<tI.ll."t.':'<.I ~''cs':'<.I ':'Il "Il..
offender's threat to public safety, yet the means by which this threat is
analyzed uses moral criteria like heinous, atrocious, and cruel. Language
about term uniformity in the parole statute arguably mirrors the proportionality concerns of the DSL,91 yet consideration of the individual offense requires the parole board to "eschew term uniformity, based simply
on similar punishment for similar Climes, in the interest of public safety in
the particular case."92 Finally, California has retained post-release parole
supervision for all prisoners, including those serving determinate
sentences, even though the discretionary parole release decision is made
only for indeterminately sentenced prisoners."'
C. California's Parole Release Process
This section reviews California's parole release process. California
law sets out a two~stage procedure for determining when prisoners serving indeterminate sentences can be released. First, a panel of parole
board members decides whether a prisoner is suitable for parole. 94 If a
shall rest within the sound discretion of the court"); 2007 Cal. Legis. Servo 1 (West) ("It is
the intent of the Legislature in enacting this provision to respond to the decision of the
United States Supreme Court in Cunningham v. California."). Cunningham addressed only
the DSL-it did not apply Apprendi to California's indeterminate sentences.
88. See, e.g., Cal. Penal Code § 667.51 (West 1999 & Supp. 2008) (prior lewd act with
a child); id. § 667.61 (sex offenses): id. § 667.71 (habitual sex offender).
89. Id. § 190 (West 2008).
90. [d. § 667(e)(2) (A) (West 1999 & Supp. 2008). Support for the "three strikes"
initiative among the California public was linked to a "general support for harsher
punishment of rule breakers," even though the third strike is punished with an
indeterminate, twenty-five-years-to-life sentence. See Tom R. Tyler & Robert J.
Boeckmann, Three Strikes and You Are Out, but Why? The Psychology of Public Support
for Punishing Rule Breakers, 31 Law & Soc'y Rev. 237, 250 (1997).
91. In re Dannenberg, f04 P.3d 783, 791 (Cal. 2005) (explaining that purpose of
punishment is "best served by terms proportionate (0 the seriousness of the offense"
(quoting Cal. Penal Code § 1f70(a)(I) (West 2004»).
92. Id. at 794.
93. Cal. Penal Code § 3000(b) (I) (Wes' 2000 & Supp. 2008). Most prisoners on
parole served determinate sentences. Pctersilia, When Prisoners Come Home, supra note
32, at 59. Because parole is automatically granted for determinate sentences, I do not
discuss it in this Article. I note, however, that the system of mandatory parole shows signs
of changing: The state is testing reforms that would give certain parolees "earned
discharge" from parole supervision after six months, focusing resources on the most crimeprone parolees. See Joan Petersilia, Op-Ed., Parole, the Right Way, L.A. Times, Oct. 8,
2007, at Al5 [hereinafter Pctcrsilia. Parole].
94. See Cal. Penal Code § 5076.1 (C) ("The board may meet and transact business in
panels. Each panel shall consist of two or more persons . ... ").

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prisoner is found suitable, the panel proceeds to the second stage (release date calculation), when it determines how much time the inmate
must serve before release. 95 In both stages, the panel makes its decision
based on facts about the commitment offense that were removed from
the judge's purview in the Apprendi line. Practically all panels designate
................. .............................................t;h".e,•. . c,o':mmitment offense as "heinous, atrocious, or cruel" up()Iltl1eJil1c1~
ing of "some evidence," transforming indeterminate sentences into the
LWOPP-equivalent unsuitable life sentence."6
1. Parole Suitability Basics. - One year before a California prisoner's
minimum eligible parole release date (MPRD),97 he has his first parole
suitability hearing 98 The issue before the panel during a suitability hearing is whether the prisoner "is suitable for parole, not when he should be
released."99 A prisoner unsuitable for parole is one who "will pose an
unreasonable risk of danger to society if released from prison."roo If the
prisoner is found unsuitable for release, the panel "must provide a definitive written statement of its reasons for denying parole"ror and must have
"some evidence" to support its decision Io2 The prisoner's next parole
95. In re Elkins, 50 Cal. Rptr. 3d 503, 520 ( Ct. App. 2006) (citing Cal. Code Regs. tit.
15, §§ 2402-2403 (2005)). "[T]he Board shall first determine suitability and shall set a
base term (thus establishing a parole release date) if the prisoner is deemed suitable for
parole." Dannenberg, 104 P.3d at 800. The existence of these two stages has "long been
noted in the case law." Id. at 792.
96. Irons v. Warden of Cal. State Prison-Solano (Irons 1), 358 F. Supp. 2d 936, 942
(E,D. Cal. 2005). When a parole board finds a crime heinous, atrocious, or cruel that a
jury did not, it "transforms an offense for which California law provides eligibility for
parole into a de facto life imprisonment without the possibility of parole. . . . The
circumstances of the crimes will always be what they were, and petitioner's motive for
committing them will always be trivial." Id. at 947.
97. The MPRD is calculated by taking the minimum term of the sentence and
subtracting credits for "good behavior and participation." See Cal. Penal Code
§§ 2930-2935 (West 2000) (detailing accumulation of and reduction in such credits). The
precise fonnula depends on a number of factors-different crimes yield good time at
different rates, or require a defendant to serve a given percentage of the sentence. See
generally Steven Fama et al., California State Prisoners Handbook 172-74 (3d ed. 2001)
(summarizing different good time formulas). The calculation of good time is sufficiently
complicated that thousands of California inmates have had their release dates
miscalculated. See Julia Reynolds, Suit Says Inmates Released Late, Monterey County
Herald, Dec. 12, 2007, at B1. In an interesting twist, the prison guards' union, not the
affected inmates, brought the suit against the corrections system, alleging that
understaffing prevented the guards from calculating release dates accurately. Merely
serving the minimum term of an indeterminate sentence does not, of course, entitle a
prisoner to parole. Dannenberg, 104 P.3d at 786.
98. See Cal. Penal Code § 3041 (a) (West 2000 & Supp 2008) (detailing procedure of
parole suitability hearing).
99. Sass v. Cal. Bd. of Prison Tenns, 461 F.3d 1I23, 1132 (9th Cir. 2006) (Reinhardt.
J., dissenting).
100. Cal. Code Regs. tit. 15, § 2402(a).
101. In re Rosenkrantz, 59 P.3d 174, 203 (Cal. 2002).
102. Id. at 183. For a discussion of how the "some evidence" requirement makes
judicial review practically impossible, see infra Part N.A.2.

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suitability hearing can be scheduled anywhere from one to five years
later, a term left to the parole board's discretion. 103
The determination of parole suitability takes place at a healing
which follows the same format as a trial: There is a finding of fact, and a
decision is made on the basis of that finding of fact. The issue of which
facts can.be found, by what body, according to which standard of proof,
and with what discretion to impose a result, all have clear analogies in the
sentencing process Apprendi governs. 104
Consider, as an example, Sandra Lawrence's parole hearing. I05
Lawrence, her attorney, and a Deputy District Attorney from Los Angeles
were present. 106 Lawrence was found essentially "competent" to be present at the hearing. 10? The details of the committnent offense-her state
of mind, the weapons she used, details about the murder-occupied
much more of the hearing than discussion of her conduct in prison or
post-release plans. lOS After Lawrence concluded her testimony, the
District Attorney recommended that the panel find her unsuitable for
parole. 109 Lawrence's attorney responded with her own closing arguments,1I0 and Lawrence then spoke on her own behalf. l l l After a recess,
the panel returned with a sentencing decision-that Lawrence was suita-

103. Cal. Code Regs. tit. 15, § 2268 (2008). Delays of more than one year must be
justified by written findings. Id.
104. My equation of parole board hearings and trials/sentencing is not novel. David
Rothman describes parole board hearings a<; "in effect retrying, in capsule fashion, the
original offense." Rothman, supra notc 84, at 166.
105. In rc Life Term Parole Consideration I-fearing of Sandra Lawrence, CDC No. W19366 (Cal. Inst. for Women Aug. 25, 2005) (on file with the Columbia Law Review).
106. Id. at 1-2.
107. The parole panel made sure she did not have any disabilities that needed to be
accommodated, and Lawrence testified that she had not participated in any programs for
inmates with mental health issues. Id. at 2-5.
108. The testimonial portion of the hearing transcript ran approximately seventy-one
pages, id. at 10-81, of which a total of roughly forty pages was devoted to the commitment
offense, see id. at 11-36 (initial testimony about the murder); id. at 40-41 (influence of
drugs/alcohol at time of the murder); id. at 42-48 (Governor's prior reversal, focusing on
commitment offense, read into record); id. at 64-67 (follow up questions about potato
peeler used in murder); id. at 72-74 (District Attorney's questions about her stale of mind
at time of murder); id at 75 (Lawrence's attorney asks about commitment offense). The
testimony devoted to everything else ran approximately thirty pages. See id. at 36-38
(juvenile record and early social history); id. at 38-40 (history with alcohol and drugs); id.
at 49-53 (custodial behavior, including discipline); id. at 53-60 (letters supporting her
release); id. at 60-63 (psychiatric report); id. at 68-71 (post-release employment plans); id.
at 75-79 (summary of how she rehabilitated in prison); id. at 79-81 (recovery from
alcohol).
109. Id. at 81-83. The District Attorney focused almost entirely on the murder as
well. Id.
11 O. Id. at 83-88.
111. Id. at 88-89.

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ble for parole l12-then calculated a release date, determining the remaining time she would serve on her sentence 1l3
When calculating a release date, the panel looks to characteristics of
the commitment offense. 1I4 The panel refers to a matrix to set a "base
term" of incarceration, then adds enhancements for factors such as possession ()f a firea nn during the offense, 11 5 .The nlatrices bear a striking
resemblance to the Federal Sentencing Guidelines Booker invalidated.
Each matrix establishes three term lengths for a given offense, depending
on how the crime was committed, the relationship between the offender
and the victim, and the injury to the victim. 1I6 If there is no matrix for a
given offense, the board establishes a base term by comparing the crime
to offenses of similar gravity and magnitude. II? As a practical matter,
when a prisoner is eventually found suitable for parole, he is almost always long past even the highest range of the release-date guidelines. 1I8
Therefore, I do not spend much time discussing the Apprendi ramifications of release-date calculations, even though they, too, use commitment
offense facts to determine time served in prison.
If a parole panel finds a prisoner suitable for parole, the parole
board as a whole can review and remand a panel's suitability decision
within 120 days. 11 9 The governor can also reverse suitability findings
112. Id. at 90.
113. Id. at 93-94. Her total period of confinement was calculated at 130 months,
starting in 1983. Id. at 94. The hearing took place in August 2005. Even assuming that the
trial concluded on the very last day of 1983, Lawrence still would have served at least 261
months-more than double the sentence time the parole board eventually calculated.
114. In re Dannenberg, 104 P.3d 783, 800 (Cal. 2005) ("[T]he Board shall first
determine suitability and shall set a base term (thus establishing a parole release date) if
the prisoner is deemed suitable for parole."); In re Elkins, 50 Cal. Rptr. 3d 503. 520 (CL.
App.2006) (citing Cal. Code Regs. tit. 15, §§ 2402-2403 (2003». This process is meant to
ensure that "uniformity in sentencing is taken into account." In re Scott (Scott!), 15 Cal.
Rptr. 3d 32. 42 n.6 (Ct. App. 2004).
115. Cal. Code Regs. tit. 15, § 2285 (2003). The release date can be years into the
future. Elkins, 50 Cal. Rptr. 3d at 520. In no case maya prisoner serving life be released
without having served the greater of seven calendar years or a "minimum period of
confinement under a life sentence before eligibility for parole." Cal. Penal Code § 3046
(West 2000 & Supp. 2008). In addition, no prisoner may be released on parole within sixty
days of his suitability hearing. Id. § 3042(b).
116. See Fama et al., supra note 97, at 181.
117. Id.
118. See infra Part J.D.
119. Cal. Penal Code § 3041 (b). Parole can also be rescinded between a successful
suitability hearing and the actual date of release. Cal. Code Regs. tit. 15, § 2450 (2000).
(The date can also be moved up, pursuant to id. § 2269 (2003).) Behaviors leading to
rescission include serious disciplinary issues (assault, escape, distribution of intoxicants)
and psychiatric deterioration. Id. § 2451 (a) (2000). The board can also initiate rescission
proceedings if "fundamental errors" resulted in the "improvident granting of a parole
date," or if "[a]ny new information ... indicates parole should not occur." ld. § 2451(c).
As in the initial parole hearing, the evidentiary standard for the board's ability to rescind
parole is the very low "some evidence" threshold that is derived from Superintendent v.
Hill, 472 U.S. 445 (1985). For a discussion of the Hill standard, see infra Part IVA

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within thirty days if the commitment offense was murder. J20 Gubernatorial reversals of parole grants must be made on the same basis as parole
board decisions themselves. 121
2. The Use of Commitment Offense Facts in Suitability Determinations. Although the panel is to consider "[a]1I relevant, reliable information
available." in determining suitability,122 the statute governing parole release focuses exclusively on the offender's commitment offense and criminal history.123 One of the circumstances "tending to show unsuitability"
for release is the nature of the commitment offense: Crimes committed
"in an especially heinous, atrocious, or cruel manner" tend to indicate
unsuitability for release. 124
"[A] conviction for second degree murder" is not supposed to "automatically render one unsuitable" for parole by virtue of the fact that the
offender committed the crime. 125 The Califomia regulations enumerate
specific facts indicating that a murder was heinous, atrocious, or cruel,
such as a murder with multiple victims (including those assaulted or injured), crimes "carried out in a dispassionate and calculated manner,"
120. Cal. Penal Code § 3011.2 (West 2000).
121. In re Elkins, 50 Cal. Rptr. 3d 503, 512-13 (Ct. App. 2006).
122. Cal. Code Regs. tit. 15, § 2402 (2005). These factors
include the circumstances of the prisoner's social history; past and present mental
state; past criminal history, including involvement in other criminal misconduct
which is reliably documented; the base and other commitment offenses,
including behavior before, during and after the crime; past and present attitude
toward the crime; any conditions of treatment or control, including the use of
special conditions under which the prisoner may safely be released to the
community; and any other information which bears on the prisoner's suitability
for relca')c.
Id. The cited regulations refer specifically (Q "murders committed on or after November 8,
1978," id. § 2400, but they are substantially the same for other prisoners serving
indeterminate life sentences, see, e,g., id. ("The suitability criteria are the same for [those
convicted of murdel-s on or before NO\!cmber 7, 1978] ... ."). Whether the governing
rules are statutory or regulatory "lacks constitutional significance." United States v.
Booker, 543 U.s. 220, 237 (2005) (Stevens, j., opinion of the Court).
123. The statute provides:
The panel or the board, sitting en bane, shall set a release date unless it
determines that the gravity of the currcnt convicted offense or offenses, or thc
timing and gravity of currcnt or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy period of incarceration
for this individual, and that a parole date, therefore, cannot be fixed at this
meeting.
Cal. Penal Code § 3011 (b) (West 2000 & Supp. 2008).
124. Cal. Code Regs. tit. 15, § 2402(c) (1). Other factors include a previous history of
violence, an unstable social history. sadistic sexual offenses, a history of mental problems,
and institutional misconduct. Id. § 2402(c).
125. In re Scott (ScottI), 15 Cal. Rptr. 3d 32, 45 (Ct. App. 2004) (quoting In re Smith,
7 Cal. Rptr. 3d 655, 673 (Ct. App. 2003); see also In re Dannenberg, 104 P.3d 783,802
(Cal. 2005) ("[T]he violence or viciousness of the inmate's crime must be more than
minimally necessary to convict him of the offense for which he is confined.").

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mutilation of victims, "callous disregard for human suffering," and a trivial motive for killing. 126
In practice, however, these enumerated factors provide no obstacle
to deeming almost all murders heinous, atrocious, or cruel. In re
Criscione, a recent case from a California state court, reviewed thousands
of parole denials and found that "in. one hundred percent of 2690 randomly chosen cases, the [Parole] Board found the commitment offense
to be 'especial1y heinous, atrocious, or cruel', a factor tending to show
unsuitability under Title 15 § 2402(c)(1)."127 The court emphasized t11at
parole boards found both the absence of and existence of the same facts
to be indicators of unsuitability:
For example, if the inmate's actions result in an instant death
the Board finds that it was done in a "dispassionate and calculated manner, such as an execution-style murder." At the same
time the Board finds that a murder not resulting in near instant
death shows a "callous disregard for human suffering" without
any further analysis or articulation of facts which justiry that conclusion. If a knife or blunt object was used, the victim was
"abused, defiled, or mutilated." If a gun was used the murder
was performed in a "dispassionate and calculated manner, such
as an execution-style murder." If bare hands were used to extinguish another human life then the crime is "particularly heinous
and atrocious."128
3. Deferential Review. - Prisoners found unsuitable can only challenge the board's finding t11rough state habeas corpus review: California
does not al10w direct appeal of parole board decisions. 129 In habeas, the
prisoner bears the burden of proof on any disputed issues of fact. 130 Deference to the parole board's "broad discretion over parole suitability decisions" means that "courts should refrain from reweighing the evidence
[during state habeas], and should be reluctant to direct a particular re126. Cal. Code Regs. tit. 15, § 2402(c)(I).
127. In re Criscione, No. 71614, slip op. all (Cal. Super. Ct. Aug. 30, 2007), available
at http://bayareanewsgroup.com/multimedia/mn/news/criscionc_complainc091307.
pdf (on file with the Columbia Law Review).
128. [d. at 13. The opinion continued:
Similarly, if several acts, spanning some amount of time, were necessary ror the
murder the Board may deny parole because the inmate had "opportunities Lo
stop" but did not. However jfthe murder was accomplished quickly parole will be
denied because it was done in a dispassionate and calculated manner and the
victim never had a chance to defend themselves or flee. If the crime OCCUlTed in
public, or with other people in the vicinity, it has been said that the inmate
"showed a callous disregard" or "lack of respect" for the "community." However if
the crime occurs when the victim is found alone it could be said that the inmate's
actions were aggravated because the victim was isolated and more vulnerable.
Id. at 13-14.
129. Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003) ("[Sltale habeas re,oew is
the first and only opportunity the California state courts have to hear a prisoner's
constitutional claims.").
130. In re Rosenkrantz, 59 P.3d 174, 217 (Cal. 2002).

2009]

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sult."13] Even a valid habeas claim cannot result in a grant of parole:
California state courts may only "requir[e] the Board to conduct another
parole suitability hearing."] 32
The result is that the parole board findings of fact are upheld on a
standard lower than the preponderance of evidence standard at issue in
the Apprendi line, even when the board finds facts the jury explicitly failed
to find. In fact, a "parole authority may credit evidence suggesting the
inmate committed a greater degree of the offense than his or her conviction evidences."133 Murderers sentenced to indeterminate life sentences
are, incredibly, not "entitled to earlier release simply because their convictions are in the second rather than the first degree."!34 Ajury acquittal
on a given grounds meant only that the jury found a reasonable doubtnot that it lacked "some evidence" of a given fact. ]35
In Dannenberg, for example, the California Supreme Court found
that the facts of the offense "pelmitted an inference" by the parole board
that Dannenberg drowned his wife,I36 even though "how this happened
is unclear.'·!37 In Rosenkrantz, the California Supreme Court found that
even if "the jury, for whatever reason, did not find beyond a reasonable
doubt" that a crime was premeditated, that does not "preclude this court
from detelmining that some evidence" supports a finding at the parole
stage that it was premeditated. I3s
In re Scott (Scott II) found the prosecuting district attorney using the
parole suitability hearing as a second opportunity to prove premeditation. Scott was offered a pretrial plea for manslaughter (a crime that did
not require premeditation), and was acquitted at trial of first degree murder (a crime that did require premeditation).!39 The district attorney's
office nevertheless argued that Scott's crime was premeditated, explain131. In re Ramirez, ]]4 Cal. Rptr. 2d 381, 398 (CI. App. 2001), overruled on olher
grounds by In re Dannenberg, 104 P.3d 783 (Cal. 2005).
132. Id.; see also In re Irons, No. 121937 A, 1 (Cal. Super. CI. Jan. 30, 2002) (order
denying petition of habeas corpus) (on file with the Columbia Law Review) ("The
jurisdiction of the courts in this area is limited to dctcnnining whether procedural
requirements have been met. If the Board's action was not arbitrary, the separation of
powers doctrine precludes review in [sic] the merits." (emphasis added»,
133. Dannenberg, 104 P.3d al 803 n.15 (citing Rosenkrantz, 59 P.3d at 219).
134. 1d.
135. &senkrantz, 59 P.3d at 219.
135. Dannenberg, 104 P.3d at 802.
137. Id. at 785.
138. Rosenkrantz, 59 P.3d at 219. Thus, a state need not bother with jury proof beyond
a reasonable doubt, as long as the proceeding is not called sentencing and the decision is
not made by the presiding judge. The state can effectively stack the deck even further:
The prisoner must contest the finding of fact, but contesting the facts is likely to weigh
against his suitability for parole. In re Scott (Scali II), 34 Cal. Rptr. 3d 905. 924 (Ct. App.
2005) (explaining prisoner's effort to show his crime is not heinous "will be seen as
unwillingness to accept responsibility and therefore evidence of unsuitability"). He must
then challenge the finding at habeas, where he bears the burden of proof. Rosenkrantz, 59
P.3d at 217.
139. Scali II, 34 Cal. Rptr. 3d al 913.

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ing that his pretrial offer "had nothing at all to do with .. what we're
talking about today" at the parole hearing, but only with "what we felt the
evidence would be able to prove."140
In Brodsky v. Kane, Federal District Judge Charles Breyer upheld the
parole denial of a defendant who pleaded guilty to second degree murdeL I41 Even though the defendant was "being detained on the basis of
first-degree facts, such as the fact that his crime involved a murder-forhire and was 'carried out in a dispassionate and calculated manner,' "142
Judge Breyer nonetheless found that "the State of California has unbridled discretion in determining the standard by which to grant parole, if
at all."143
D. The Result: Prisoners Serve Much Longer than Their Enumerated Term. of
Years

The widespread imposition of unsuitable life sentences means that
few prisoners serving indeterminate sentences are ultimately released.
From 1999 to 2002, the California parole board conducted approximately
12,000 suitability hearings. IH Just 140 prisoners were found suitable for
release. 145 Of those 140 determinations, 127 were reversed by thenGovernor Gray Davis and eleven remanded, leaving a total of two prisoners released into parole-both of them "battered women who killed their
abusers."146 Davis's predecessor released sixty-eight prisoners in eight
years, and his successor, Arnold Schwarzenegger, has released 170 prisoners out of the 771 found suitable. 147 One current estimate is that three
percent oflifers eligible for parole are found suitable each year and given
140. Id. (alteration in original) (internal quotation marks omitted). The board
granted Scott's parole in Scott II, only to be overturned by the Governor on the sole basis
that his crime was heinous, atrocious, or cruel. Id. at 914 (quoting Governor that "[t]he
gravity of the murder ... alone is a sufficient basis on which to conclude that his release
from plison at this time would pose an unreasonable public safety risk" (first alteration in
original) (internal quotation marks omitted». ]n Scott I, however, the board had looked at
the same facts-including all the facts about the plea offer and the jury's verdict-and
found him unsuitable for parole on the basis of his commitment offense. See In re Scott
(ScottI), 15 Cal. Rptr. 3d 32, 43-45 (Ct. App. 2004). Scott's habeas petition was granted in
Scoll II, and he was subsequently released. 34 Cal. Rptr. 3d at 927.
141. No. C 06-02288 CRB, 2007 U.S. Dist. LEXIS 56401, at *1-*2 (N.D. Cal. July 24,
2007).
142. Id. at *31.
143. Id. at *32.
144. Editorial, Da,is Keeps Door Shut, S.F. Chron., Sept. 29, 2002, at D4.
145. Id.
146. Id. But the court in In re Rosenkrantz rejected the contention that then-Governor
Davis had a "no parole" policy, in part because of Davis's statements that second degree
murderers "should serve at least a life sentence in prison." 59 P.3d 174, 223 (Cal. 2002)
(internal quotation marks omitted). By the end of his term, Davis overturned all but six
parole suitability tindings for prisoners serving murder sentences. Abramsky, supra note
55.
147. Editorial, Home for Christmas, S.F. Chron., Dec. 24, 2007, at B4; see also Bob
Egelko, Court Overrules Parole Veto, S.F. ehron., Nov. 28, 2007, at B2 (stating that

2009]

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release dates by the board, but only one percent survive full board and
gubernatorial review on the way to release.'48 These figures cover only
prisoners who have had hearings, however; the parole board currently
has a substantial backlog of parole hearings and is subject to court orders
resulting from a case filed by parole eligible inmates. l4"
California data from 2006 show that second degree and first degree
murderers served roughly the same time in prison, even though a first
degree sentence is twenty"five years to life and a second degree sentence
is fifteen years to life. 15o The median time served for paroled second
degree murderers was twenty-three years, one month. The median time
served for paroled first degree murderers was twenty-six years, three
months.!S!

* * *
In short, prisoners serving unsuitable life sentences are initially given
parole eligible sentences based on their commitment offense, but are
later denied parole on the basis of that same offense. There is almost no
way to challenge parole board findings of fact given the deferential standard of review, and existing cases governing due process rights in parole
are incoherent and ineffective. Apprendi, however, allocates the domain
of factfinding about the crime to the jury, discusses limitations on the
Governor Schwarzenegger has overturned parole board determination about three
quarters of the time).
148. Abramsky, supra note 55.
149. Michael Rothfeld, State Parole Board Gets a Grilling, L.A. Times, July 6, 2008, at
B1 (counting backlog of ],400 parole heal;ngs). Part of the problem is high turnover in
commissioners. See id.
150. See Data Analysis Unit, Cal. Dep't of Corr. & Rehab., Time Served on Prison
Sentence 2 tbl.1 (2007), available at http://www.cdcr.ca.gov/Reports_Research/
Olfender_Information_Services_Branch/AnnuaI/TlME6/TIME6d2006.pdf (on file with
the Columbia Law Review).
151. Id. The data are perhaps skewed by the small sample size. Only three first
degree and twenty-seven second degree murderers ,,",'ere granted parole. Given the
thousands of prisoners senring first and second degree tenTIS, however, it is perhaps safe to
assume that prisoners yet to be released are serving even longer.
AI; one California state judge noted:
[l]t should be self evident that after an inmate has sCIlled the equivalent of 25
years, whether his actions were more than minimally necessary for a second
degree conviction . . . is no longer the appropriate question. [The board's]
position, that inmates who were only convicted of second degree may forever be
denied parole based on some modicum of evidence that their acts rose to the
level of a first, without acknowledging the fact that they have already served the
time for a first, should be seen as so ridiculous that simply to state it is to refute it.
In re Weider, 52 Cal. Rptr. 3d 147, 155-56 (Ct. App. 2006) (alteration in original)
(internal quotation marks omitted). This is, ultimately, why 1 do not spend much time
discussing the Apprendi ramifications of release-date calculations, even though they, too,
apply commitment offense faclS to a matrix of sentence lengths. A'i a practical matter,
when a prisoner is eventually found suitable for parole, he is almost always long past even
the highest range of the release-date guidelines.

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penalty that can be imposed for a given verdict, and requires heightened
standards of proof for facts increasing punishment. Might it provide a
barrier to unsuitable life sentences?
11.

WI-JICH BODY FINDS WHICH FACTS?

I look at the unsuitable life sentence problem in three parts: limitations on which body gets to decide which facts (Part 11); limitations on
the penalty that can be imposed (Part III); and limitations on the standard of proof used to justifY those penalties (Part IV). I examine each of
these from two perspectives-the parole due process line of cases l52 and
the Apprendi line J53-and then attempt to synthesize the conclusions of
both lines. Removing commitment offense facts from the parole board's
purview vindicates Appendi's key interests and preserves parole board discretion over areas in which it is the more competent and accurate
factfinder.
Parole due process cases traditionally grant almost complete deference to the parole board to decide any fact about the prisoner or her
offense. Discretionary release determinations are seen as more art than
science: Judicial oversight neither preserves rights nor improves outcomes. Apprendi, however, gives no deference to nonjury bodies when a
given fact increases punishment. Any fact increasing punishment beyond
the statutot]' maximum must be found by the jury alone.
Reconciling these two lines of cases, then, turns on the meaning of
punishment. A mechanical/formal version of Apprendi, one in which
punishment merely means an increase in prison time, would present an
"all or nodling" simation where the jury supplanted the parole board:
The jury would have to find any fact used in a parole suitability determination, including those relating to post-trial institutional behavior. A version of Appendi grounded in the meaning of punishment, howeverwhere Appendi only applies to retributive incarceration, not rehabilitative
incarceration-would mean the jury need only find commitment offense
facts. This would preserve parole board discretion to determine rehabilitative factors in a way that is implicit, and sometimes explicit, in Apprendi
and its predecessors. This split, in tum, maps onto the two parts of a
California indeterminate sentence: The enumerated term of years governed by the jury is punitive, and the rest of the term governed by the
parole board measures rehabilitation.
A. Parole Discretion and Unsuitable Life Sentences

The Supreme Court has given parole boards immense latitude to
make suitability determinations: Parole requires only "some orderly pro152. See supra text accompanying notes 56-63.
153. See supra text accompanying notes 6-21.

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cess, however informal."!54 The essence of the Supreme Court's approach is that the inherent subjectivity of parole determinations means
that judicial second-guessing yields no benefit. This section explores the
ways in which parole due process does not constrain the parole board's
authority to find commitment offense facts, enabling it to impose unsuitable life sentences.
1. Parole Boards Are Given Authority to Determine a Wide Range of
Facts. - There are two parts to any parole suitability determination:
factfinding and judgment. In the first stage, "[ t] he function of legal process ... in the realm of factfinding, is to minimize the risk of erroneous
decisions."!55 When it comes to the parole board's judgment, however,
due process does not require the parole board to "specify the particular
'evidence' ... on which it rests the discretionary determination that an
inmate is not ready for conditional release."!56 This is because suitability
decisions involve "a predictive judgment" about "what is best both for the
individual inmate and for the community,"!5? an "equity-type judgment"
synthesizing facts, personal observations, and the experience of the decisionmaker.'58 The parole board's "decision is much like a sentencing
judge's choice ... to grant or deny probation following a judgment of
guilt ...."159 In this view, then, there is no constitutional floor for parole-the board can consider whatever it wants. The board's decisionmaking is cabined only by parole statutes and regulations, which, in
California, encourage the board to consider the commitment offense.
2. Parole Board Factfinding and Unsuitahle Life Sentences. - The parole
line of cases poses only a minimal barrier to unsuitable life sentences. As
long as a parole board follows the law and provides "some evidence" supporting its decision, courts may not intervene. In states like California,
154. Morrissey v. Brewer, 408 U.s. 471, 482 (1972). Morrissey concerns parole
revocation, but, if anything, the due process requirements are even more minimal for
prospective parole release, See Greenholtz v. Inmates of Neb. Penal & COlT. Complex, 442
U.S. 1, 9 (1979) ("There is a crucial distinction between being deprived of a liberty one
has, as in parole, and being denied a conditional liberty that onc desires,"). I will
therefore cite Mumney for the general principles involved in parole administration, at least
insofar as they are comistcnt with the two leading cases about parole, Greenhollz and Board
of Pardons v. Allen. 482 U.S. 369 (1987). The method used for establishing the liberty
interest in parole is quite different among these cases, however, and will be discussed in
greater detail infra Part lILA. I.
155. Gmmhollz. 442 U.S. at 13; see also Morrissey, 408 U.S. at 479-80 (explaining that
first step in parole revocation is a "wholly retrospective factual question," where accuracy is
at a premium. and the second step is more "predictive and discretionary"). Note that the
separation of factfinding from disposition bears a striking resemblance to the Apprendi
line's separation of the jury's power to find facts from the judge's power to make
dispositional decisions based on those facts.
156. Greenhullz, 442 U.S. at ]5. However, the board could "communicate[] the
reason for its denial as a guide to the inmate for his future behavior." ld.
157. Id. at 8.
158. Allen. 482 U.S. at 374-75 (internal citations omilted).
159. Greenholtz, 442 U.S. at 16. But see infra Part Il.B.l.b for a discussion of how this
discretion might itself depend on rehabilitative concerns.

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with parole statutes that encourage the board to consider the commitment offense in determining suitability, any potential due process barriers all but disappear.] 60
While parole cases permit unsuitable life sentences, courts are nevertheless grappling with the sense that there is something wrong with them.
Courts have used due process reasoning to overturn commitment offense
parole denials at least twenty-eight times since late 2005. 161 In the main,
these cases have held that the evidence supporting denial must not be
merely "that a particular factor or factors indicating unsuitability exist,
but that a prisoner's release will unreasonably endanger public safety."162
"It violates a prisoner's right to due process when the Board or Governor
attaches significance to evidence that forewarns no danger to the
public."163
The California Supreme Court recently considered "the question of
the extent that the [Parole] Board and the Governor should consider an
inmate's current dangerousness in making a parole suitability determination, and at what point, if ever, the gravity of the commitment offense
and prior criminality are insufficient to deny parole when an inmate otherwise appears rehabilitated."164 In re Lawrence held that a commitment
offense must show not only "some evidence" of a given statutory factor
(such as "heinousness"), but also some evidence of the ultimate conclusion-that the inmate is presently dangerous. 165 The dissent argued,
160. For a discussion of California's parole statute, see supra notcs 43-50 and
accompanying text. Practically speaking, the consideration of the commitment offense
makes a parole board finding of suitability almost impossible. What difference does it
make that a prisoner has done well in, say, anger management class, when that is measured
against his taking another person's life? No CPA in a prisoner's GED cla'is is going to be
high enough to compensate for her killing someone. The facts in mitigation thus have
almost no chance to tip the balance towards release.
161. Michael Rothfeld, Is This Paroled Killer Still a 111reat?, L.A. Times,July J 3,2008,
at AI. One inmate attorney characterizes this number as "an extremely high reversal rate,"
adding "[i]t was so completely unfair, the courts finally had to do something. The
governor can basically resentence these inmates to life without possibility of parole." Id.
(internal quotation marks omitted).
162. Hayward v. Marshall, 512 F.3d 536, 543 (9th Cir. 2008).
163. In re Tripp, 58 Cal. Rptr. 3d 64, 68 (Ct. App. 2007).
164. In re Viray, 75 Cal. Rptr. 3d 190, 195 (Ct. App. 2008) (citing seven cases then
pending review before California Supreme Court).
165. "In some cases" where evidence of rehabilitation is overwhelming and the only
evidence of unsuitability is the commitment offense, the commitment offense "does not
provide 'some evidence' inevitably supporting the ultimate decision that the inmate
remains a threat to public safety." In re Lawrence, 190 P,3d 535, 539 (Cal. 2008), The
court concluded:
[A] lthough the Board and the Governor may rely upon the aggravated
circumstances of the commitment offense as a basis for a decision denying parole,
the aggravated nature of lhe crime does not in and of itself provide some
evidence of current dangerousness to the public unless the record also . . .
indicates that the implications regarding the prisoner's dangerousness that derive
from his or her commission of the commitment offense remain probative to the
statutory determination of a continuing threat to public safety.

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with some reason, that the court was substituting its own judgment for the
parole board's, and that there were significant separation of powers issues
at stake. 166
Cases overturning unsuitability findings do not dispute whether a parole board can use the commitment offense to justiry parole denial, however, only whether this justification comports with the language of the
parole statute. The jurisprudential tools available in the Apprendi line
provide a more cogent and direct means of reining in unsuitable life
sentences.
B. Apprendi '5 Jury Requirement

In this section, I explain the rationale behind Apprendi's jury requirement by looking at the institutional competencies of the judge and jury.
This analysis also helps to explain the contours of Apprendi's rule-for
example, why a judge may find proof of prior offenses to increase an
offender's sentence. Using this institutional competence analysis, I then
map Apprendi's rule onto indeterminate sentencing, concluding that the
parole board may not find facts related to the commitment offense when
making its suitability determination: The commitment offense is largely a
matter of retribution, and any public safety implications are better handled by the judge.
1. The Jury Finds Retributive Facts, the Judge Finds Public Safety Ones. In this subsection, I explain Apprendi's division of labor between the
judge and the jury by analyzing the rehabilitative and retributive components of confinement. Apprendi isolates two necessary dimensions of punishment: the stigma of conviction, which comes from the wrongfulness of
the conduct, and the loss of liberty, which is the consequence of the
transgressive behavior. While punishment is necessarily stigmatic, confinement need not be: An offender can be confined in order to incapacitate and rehabilitate him. Thus, the reasons why confinement is imposed-that is, whether or not confinement is punitive-helps determine
which facts a jury must find.
In Part n.B.l.a, I explain that juries must find facts leading to punishment because they serve as the moral representatives of the community. Retribution is not a legal issue or a criminological issue, but a moral
one best left to the conscience of the community.16? In Part n.B.l.b, I
Id. at 555.
166. Id. at 566 (Chin, j., dissenting) ("[I]f a factor is properly part of the [parole
suitability] evaluation ... and [its] existence ... is supported by some evidence, ... the
electorate entrusted [the ultimate conclusion regarding parole suitability] to the
Governor's discretion, not the courts . . . ." (citation and internal quotation marks
omitted» .
167. When considering the division of labor between judge and jury, one need not
consider the diflerence between detenninate and indeterminate sentences. These
sentences differ only at the point of release-not when ajudge pronounces the sentenceand in neither ca.se is the release decision made by either the judge or the jury. In a

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explain why public safety evaluations require competence of a different
sort. Nonjury repeat players, such as parole boards and judges, are more
likely to know which consequences applied to which criminals are most
effective in neutralizing their threat to public safety. Public safety evaluations are not punitive, so juries need not be involved. I use this understanding of institutional competencies to explain the exceptions to
Apprendi's jury factfinding requirement in Part n.B.I.e.
a. TheJury as Moral Agent. - Understanding Justice Stevens's view of
juries is the key to understanding his majority opinion in Apprendi. Punishment involves not just the deprivation ofliberty but the imposition of
moral stigma, and the jury, the conscience of the community, is uniquely
suited to make moral judgments. Stevens's views were developed in a
series of death penalty cases where the defendant argued that judicial
factfindingjustifying a death sentence violated the Sixth Amendment.!68
(Some of these cases also explicitly examined the "heinous, atrocious, or
cruel" standard used in the death penalty statutes at issue.!6g) Often writing in dissent,Justice Stevens argued that the moral questions underlying
punishment meant that the jury had to find facts.
In Spaziano v. Florida, for example, the Court held that a judge'S imposition of the death penalty over a jury recommendation of life imprisonment does not violate the Sixth Amendment, noting that capital sentencing is not "like a trial in respects significant to the Sixth
Amendment's guarantee of a jury trial," because it involves questions of
punishment, not questions of guilt or innocence 170 Dissenting, Justice
Stevens argued that juries alone should make the decision about death,
because they are "best able to express tile conscience of the community
on the ultimate question oflife or death."!7! Because capital punishment
is "an expression of society's moral outrage,"!72 the "life-or-death decision ... depends upon its link to community values for its moral and
constitutional legitimacy," just as the jury trial right at the guilt phase ties
the deprivation of liberty to community values.l7 3 "UJ urics more accudetcr-minate system, there is no release decision to be made; in an indeterminate system,
the release decision is made by the parole board. For a more detailed discussion of
determinate and indctcnninate sentences, sec supra Part LA.
168. Rory Little has argued that the "triumphant architect" in the Apprendi line is not
justice Scalia, but Justice Stevens, based on how his view of the jUl)"s role developed in
these early cases. Weisberg, supra note 72, at 630.
169. See Walton v. Arizona, 497 U.s. 639, 646 (1990), overmJcd by Ring v. Arizona.
536 U.S. 584 (2002) (upholding death sentence given out under "heinous, atrocious, or
depraved" statute); Clemons v. Mississippi, 494 U.S. 738, 742 (1990) (announcing that
death sentence may be imposed on grounds that murder was committed for pecuniary
gain and was "heinous, atrocious, or cruel"); Maynard v. Carhvright 486 U.S. 356, 359-60
(1988) (holding Oklahoma's "heinous, atrocious, or cruel" aggravating death penalty
factor unconstitutionally vague as applied).
170. 468 U.S. 447, 458-59 (1984).
171. Id. at 470 (Stevens,]., dissenting) (internal quotation marks omitted).
172. Id. at 480 (internal quotation marks omitted).
173. Id. at 483.

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rately reflect the conscience of the community than can a single judger,
which] is the central reason that the jury right has been recognized at the
guilt stage in our jurisprudence."!74
Although she does not examine Spaziano and other Apprendi precedents, Laura Appleman has also located the Apprendi line's theory of sentencing in a limited "expressive retributive theory of punishment for sentencing."!75 Part of the purpose of punishment is to "reinforce belief' in
the community's values.!76 "[W]hen the jury determines sentencing
facts ... [an offender's] community[] and his peers have pronounced
his blameworthiness ...."!77 The jury expresses "the community's condemnation of the act."!78
With the jury's moral role as background, it is easier to understand
Apprendi's definition of punishment. That is, while Apprendi spoke generally of whether the fact at issue would increase the penalty!79 or punishment!SO [or a crime, it did not equate penalties and punishments with
prison sentences. Punishment involves something more: not just the loss
of liberty, but also the stigma of the offense.!S! Different punishments
attach to different degrees of "criminal culpability."!82
174. Id. at 487. Justice Stevens concluded:
Juries-comprised as they are of a fair cross section of the community-are more
representative institutions than is the judiciary; they reflect more accurately the
composition and experiences of the community as a whole, and inevitably make
decisions based on community values more reliably, than can that segment of the
community that is selected for senrice on the bench.
Id. at 486-87 (internal citation omitted).
175. Appleman, supra note 3, at 1326. Appleman's theory owes a great deal [0 Jean
Hampton's work, which is based on the idea that there are "two [onns of damage to value
effected by wrongful actions": what the action does and what the action means. Jean
Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA
L. Rev. 1659, 1672, 1680 (1992) (noting that while a woman stealing a book from a library
sends a message that she considers herself superior to others, "her actions actually make it
the case" that she gets superior treatment).
176. Hampton, supra note 175, at 1678. This approach is not without its limitations.
In discussing Durkheim's very similar dramaturgical theory of the law (that punishment is
"directed primarily at the community and not at the offender" and works "indirectly
through affirmation and reiteration of basic norms"), Michael Tonry observes that
"[c]riminaI law and punishment ... are not the primary means of socialization into right
values. That function belongs to primary social organizations such as the family, the
church, the workplace, the community, and to kinship and friendship networks." Michael
Tonry, Thinking About Crime: Sense and Sensibility in American Penal Culture 99
(2004).
177. Appleman, supra note 3, at 1332.
178. Id. at 1338. The judge is a less effective instrument of punishment because "the
offender may very well attribute his punishment to the State and shrug off the desired
feelings of responsibility or awareness of his wrongdoing.'" Id. at 1332.
179. E.g., Apprendi v. New Jersey, 530 U.S. 466, 472, 473. 476, 482, 483. 486, 490, 495,
497 (2000).
180. E.g., id. at 476, 478, 480-88, 491, 495.
181. ld. at 484.
182. Id. at 485. Justice Stevens noted that "[t]he degree of criminal culpability the
legislature chooses to associate with particular, factually distinct conduct has significant

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If a defendant faces punishment beyond that provided by statute
when an offense is committed under certain circumstances but
not others, it is obvious that both the loss of liberty and the
stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is
put to proof of those circumstances-be deprived of protections
that have, until that point, unquestionably attached. 's3
Stigma is important in its own right, even when criminal penalties
are not involved. In re Winship, a noncriminal, indeterminate sentencing
case from 1970 184 that lies at the heart of Apprendi's holding about the
burden of proof,ls5 held that the adjudication of a juvenile as a delinquent-which generated the stigma of having done something
wrong'8fi -could be punitive even though the result of this decision was
that Winship was sent to reform school. 18 ?
b, TheJudge as Rehabilitation Expert. -Judicial discretion to find facts
at sentencing is unrelated to moral or retributive judgments. A judge's
factfinding power derives instead from her role as an experienced and
astute analyst of what sentence might best preserve the public safety and
rehabilitate an individual offender. This discretion is rooted historically
in an era where both indeterminate sentences and the goals of rehabilitation were dominant. With the resurgence of determinate sentences and
punitive goals, the rules about judicial discretion have parted ways with
their underlying rationales.
In the middle of the twentieth century, when judicial discretion was
at its peak, crime was seen as a "moral disease," and the judge was an
expert who prescribed treatment for the offender. 188 Judges got broad
factfinding discretion in order to "tailor dispositions to dle treatment
needs of individual offenders and the public safety risks they posed."189
implications both for a defendant's vcry liberty, and for the heightened stigma associated
with an offense the legislature has selected as worthy of greater punishment." ld. at 495.
183. Id. at 484. Moreover, both the "absolute years behind bars ... and ... the more
severe stigma attached" are constitutionally significant. Id. at 495. "Prosecution subjects
the criminal defendant both to the possibility that he may lose his liberty upon conviction
and . .. the certainty that he would be stigmatized by the conviction." Id. at 484 (emphasis
added) (omission in original) (internal quotation marks omitted) (citing In re Winship,
397 U.S. 358, 363 (970)). Justice Stevens, in his dissent in McMillan v. Pennsylvania,
offered this variation on the Apprendi/Winship rule: "[T]he Due Process Clause
requires ... [the State] to prove any component of the prohibited transaction that gives
rise to both a special stigma and a special punishment beyond a reasonable doubt." 477
U.S. 79, 95 (1985) (Stevens,].. dissenting).
184. Winship. 397 U.S. at 358-59. Winship, adjudged a juvenile delinquent, faced an
indeterminate sentence, subject to annual renewal. Id. at 360.
185. See infra Part IV.
]86. Winship, 397 U.S. at 366-67 (discussing the stigmatic harms of delinquency
adjudication) .
187. Id. at 359.
188. Nancy Gertner, What Has Hams Wrought, 15 Fed. Sent'g Rep. 83, 84
(2002-2003).
189. Tomy, Reconsidering, supra note 31, at 3.

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In this judicial environment, "[n]o one challenged judges' sentencing
procedures as somehow undermining the Sixth Amendment's right to a
jury trial precisely because the judge and jury had 'specialized roles.' "190
Williams v. New l'ork1 91 presents the classic example of how the therapeutic model of criminal sanctions was essential to unfettered judicial
factfinding. Williams was convicted of first degree murder. 192 Although
the jury recommended a sentence of life in prison, the judge sentenced
Williams to death, based in part on reports of thirty burglaries for which
Williams had not been convicted.!9' In upholding Williams's death sentence, the Supreme Court focused on the statutory discretion given New
York judges,194 explaining that in the "prevalent modern philosophy of
penology ... the punishment should fit the offender and not merely the
crime."195 In order to treat the offender, the judge needed unfettered
access to facts-including uncharged facts-that would permit him to
make his diagnosis. 196
Beginning in the mid-1970s, "many of the rationales and practices of
indeterminate sentencing began to be challenged"197 as determinate, re190. Gertner, supra note 188, at 8,1 ("However flawed a judge's decision might be, it
was not the case that he or she was usurping the jury's role.").
191. 337 U.S. 241 (1949).
192. Id. at 242.
193. Id. at 242-44. Williams confessed to some of the burglaries, but evidence of
others came from witnesses Williams did not have the opportunity to cross-examine. Id.
The judge also referred to the probation report's indication that Williams possessed "a
morbid sexuality." Id. at 244.
194. Id. at 245.
195. Id. at 247 (internal citations omitted).
196. See Berman, Conceptualizing Blakely, supra notc 2, at 94. As Bennan explains:
[S]ince sentencing was long conceived-at least form all)', if not in actuality-as
an enterprise designed to help "cure" the sick defendant, the idea of significant
procedural rights at sentencing almost did not make sense. Just as patients are
nol thought to need "procedural rights" when being treated by a doctor,
defendants were not thought to need procedural rights when being sentenced by
a judge. But, of course, it has been nearly a quarter century since the
rehabilitative model of sentencing has held sway, and yet until Apprendi and
Blakely came along, our sentencing structures still relied without much question
on Ia..x procedures for proving the truth of facts that could lead to extended
sentences.
Id.
The type of discretion in Williams was closely related to, if not determined by, the
purpose of sentencing. "Indeterminate sentences" that involved discretionary release had
"to a large extent taken the place of the old rigidly fixed punishments," indicating that
"[r]etribution is no longer the dominant objective of the criminal Jaw. Reformation and
rehabilitation of offenders have become important goals of criminal jurisprudence."
Williams, 337 U.S. at 248. Of course, it seems strange to talk about rehabilitation as a goal
in a case where the judge sentenced the defendant to a sentence without any possibility of
reform-death-but this could be seen as a diagnosis that the offender was a hopeless
case.
197. Tonry, Reconsidering, supra note 31, at 5.

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tributive sentencing systems became increasingly popular. 19S States' decisions to implement binding, determinate sentencing schemes "appropriately raised Sixth Amendment concerns."!99 The Supreme Court's
sentencing doctrine, however, has not always acknowledged this shift
from rehabilitation to retribution or its implications on precedent. 200
Justices freely mix and match cases from either side of the rehabilitation/
retribution line, drawing conclusions about judicial power unmoored
from their rationales. This failure to address the goals of determinate
and indeterminate regimes has resulted in an "inherently schizophrenic"20! body of sentencing law.
For example, Williams has survived to some extent, even though its
foundation-the consensus that reformation and rehabilitation are the
goals of sentencing-has not. While the post-Apprendi ca~e Ring v.
Arizona effectively reversed Williams to require jury findings of aggravating factors justifying capital punishment,202 Williams's view ofjudicial discretion in subcapital sentencing has remained untouched. In an advisory
system, a judge may consider any fact, including uncharged or acquitted
conduct. 2ll3 Supreme Court Justices have also ignored Williams's grounding of judicial discretion in rehabilitation. Justice Scalia, for example,
distinguished Blakely from Williams solely on the basis of whether the sentencing system was binding or advisory.204 But the source of the discre-

198. See supra text accompanying notes 83-84. Although Williams had announced
confidently that the theory of punishment underlying detenninate, retributive sentencing
"no longer prevails,'" Williams, 337 U.S. at 247, the theory became the focal point of
reformers who focused on, inter alia, systemic racial bias, ineffective treatment, and undue
leniency in indeterminate systems. Tonry, Reconsidering, supra nole 31, at 5.
199. Gertner, supra note 188, at 84. Indeed, showing that there is nothing new under
the sun, Williams contained a strong dissent by Justice Murphy in which he set forth a
retributive theory of punishmentjustifying jury factfinding, Murphy identified the jury ';as
the representative of the community" whose "voice is that of the society against which the
crime was committed." Williams, 337 U,S, at 253 (Murphy, j., dissenting). Although a
judge might have "statutory authority" to override the jury, he "should hesitate indeed to
increase the severity of such a community expression," Id.
200. See Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 Ohio
St. J. erim. L. 37, 48-49 (2006) (arguing Supreme Court declined to recast sentencing
doctrine to reflect modern reforms),
201. Reitz, supra notc 3, at 1096.
202. See 536 U.S. 584, 609 (2002).
203. Reitz, supra note 3, at 1095 (discussing considerations in Williams of "thirty
burglaries that were never charged nor proven, plus additional uncharged offenses"); see
also id. at 1083 n,3 (citing Supreme Court holding that "acquittal on gun possession
charge does not preclude consideration ... at sentencing").
204. Blakely v. Washington, 542 U.S. 296, 305 (2004) ("Williams involved an
indeterminate-sentencing [that is, advisory] regime that allowed a judge (but did not
compel him) to rely on facts outside the trial record in determining whether to sentence a
defendant to death."). For definitions of the terms I use in this Article, see supra text
accompanying notes 67-68.

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tion given the judge in Williams was tied to his rehabilitative expertisehe was not given unfettered discretion to punish. 205
c. Could Retribution Explain Apprendi's Exceptions? - While the
Apprendi line has not explicitly grounded its rule in a theory of punishment, mapping the jury power to retribution helps explain why the jury
must find certain facts and why a judge can find others. This approach
might also provide a way to resolve some of the anomalies in the Apprendi
line, such as why Apprendi does not govern advisory sentencing regimes or
a judge's finding of prior convictions, even when such findings trigger
more severe sentences. 206
One of Apprendi's enduring mysteries is why, if jury factfinding is so
important, that right is only implicated in binding, presumptive systems. 207 One way of explaining this phenomenon is to read binding, determinate sentencing schemes as clear legislative statements that a sentence serves only retributive goals. A "one size fits all" sentence punishes
the offense without regard to the threat an individual offender poses to
public safety. Because binding schemes punish the crime, not the offender, a jury is in its bailiwick when it finds facts justifying punishment.
An advisory system, in contrast, can be read to implicitly endorse public
safety considerations. The judge is permitted to find facts because, as in
Williams, she must tailor her sentence to an individual offender's history
and risk of recidivism. Any deviation from a normal sentence is not necessarily a statement about punishment, but about the greater (or lesser)
need for rehabilitation and incapacitation. A jury is less suited to make
this judgment than a judge, and therefore need not find all facts bearing
on this judgment. 208

205. The Supreme Court has not addressed whether l1'"illiams's discretion is a
necessary function of rehabilitative goals, however. An advisol)', indeterminate system
could conceivably promote retribution by giving a judge more discretion [0 punish, but
this is not the reasoning behind Williams, nor is it typically the policy justification for
establishing such systems. In fact, proponents of determinate regimes often point to
indetemlinate systems' perceived "softness" on crime. Sec generally Tyler & Boeckmann,
supra notc 90, at 250 (finding support for "three strikes" rules stems from "general support
for harsher punishment of rule breakers").
206. My claim here is not that the Justices conceived of their reasons this way, but that
their actions can be explained this way.
207. See Reitz, supra note 3, at 1101 ("[T]he Court's solicitude to juries as privileged
decisionmakers is absent at the extremes, and engages only the middle ground of
presumptive rules.").
208. Conversely, the departure could indicate a judge's taste for punishmcnt, as
noted supra note 205 and accompanying text, or policy disagreements with, for example,
the crack/powder cocaine sentencing disparity. See Kimbrough v. United States, 128 S. Ct.
558, 570 (2007) (noting that courts may vary from Guidelines ranges on policy
considerations alone).

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The retribution/public safety division might also explain why the

Apprendi line caIVes out an exception for prior convictions. 209 Even

though prior convictions are facts that can operate to increase punishment by adding prison time, Apprendi does not require a jury to find
them. The retribution/rehabilitation model could explain this puzzling
omission in one of two ways.210 Since repeat offenders are more likely to
commit future crimes, prior convictions might be seen as public safety
factors about the offender, not the offense. 211 Alternatively, because the
prior convictions themselves have already comported with due process,
their use in punishment does not violate due process. 2'2
The retribution/rehabilitation model also maps onto Douglas
Berman's distinction between facts about the offense and facts about the
offendcr. 213 Justice Kennedy's dissent in Cunningham v. California en209. For example, Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),
which pennitted a judge to find prior offenses and use them to impose a higher sentence
in a binding sentencing scheme, survived the Apprendi decision.
210. The Apprendi court saw no need to explain the survival of Almendarez-Torres,
however. See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000) ("Even though it is
arguable that Almendarez-T017es was incorrectly decided .. , Apprendi does not contest the
decision's validity and we need not revisit it for purposes of our decision today . . . ."
(internal footnote omitted».
211. Apprendi distinguished Almendarez-Torres along offense/offender lines: "Whereas
recidivism 'does not relate to the commission of the offense' itself," the statute in Apprendi
went "precisely to what happened in the 'commission of the offense.'" Id. at 496 (quoting
Almendarez-Torres, 523 U.S. at 244).
Almendarez-Torres rejected this interpretation, however, stating that recidivism "goes to
the punishment." 523 U.S. at 244 (internal quoLation marks omitted); see also United
States v. Rodriquez, 128 S. Ct. 1783, 1789 (2008) (explaining that recidivism bears on both
seriousness of offense and public safety).
212. Almendarez-Torres admitted his priors "pursuant to proceedings with substantial
procedural safeguards." Apprendi, 530 U.S. at 488. Ultimately, "[b]oth the certainty that
procedural safeguards attached to any 'fact' of prior conviction, and the reality that
Almendarez-Torres did not challenge the accuracy of that 'fact' in his case, mitigated the
due process and Sixth Amendment concerns." Id. The increased penalty AlmendarczTorres faced depended only on the fact of his conviction-not the facts implicit or explicit
in that conviction. That is, the way in which Almendarez-Torres committed his offenses
did not matter; in A.pprendi, however, the defendant pleaded guilty to two counts of second
degree possession of a fireann for an unlawful purpose but not to the racial animus under
which he was eventually sentenced. Id. at 470-71.
Exonerated and uncharged behavior does, however, still operate to increase
sentences, and while this practice is outside the scope of my Article, a public safety/
punishment (or offense/offender) distinction between Williams and Apprnuti might help
explain the different treatment. For more on the use of uncharged or acquitted conduct
in the federal sys.tem, see generally Amy Baron-Evans & Jennifer Niles Coffin, Nat'l Fed.
Defender Sentencing Res. Council, Deconstructing the Relevant Conduct Guideline:
Challenging the Use of Uncharged and Acquitted Offenses in Sentencing (2008), available
at http://www.fd.org/pdUib/relevant%20conduct2.pdf (on file \vith the Columbia Law
Review).
213. Douglas A. Bennan, Distinguishing Offense Conduct and Offender
Characteristics in Modern Sentencing Reforms, 58 Stan. L. Rev. 277, 277-80 (2005)
[hereinafter Bennan, Distinguishing] (providing background about development of
offense/offender distinction in sentencing),

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dorsed Berman's distinction, arguing that courts should "distinguish between sentencing enhancements based on the nature of the offense,
where the Apprendi principle would apply, and sentencing enhancements
based on the nature of the offender, where it would not."214 The retribution/rehabilitation line could explain this modified rule as follows: Punishment for a given offense takes account of the facts involved, such as
use of a weapon, quantity of drugs, or deliberate cruelty. The jury has to
find these facts because it is determining how wrong the particular offense was, and therefore how much punishment should be given. In contrast, a judge finds facts about the offender, such as prior record or other
threats to public safety, because she is deciding how long to treat (or
quarantine) a particular individual. 215
The Supreme Court had an opportunity to distinguish these two
kinds of facts in Cunningham. Cunningham was a sexual predator sentenced to serve an aggravated, upper-level prison term on the judge's
finding of certain facts. Among the aggravating facts the judge found in
that case were facts "relating to the crime" and facts "relating to the defendant" (more specifically, "violent conduct indicating a serious danger
to society").216 The majority opinion did not distinguish between the two
kinds of facts, however, and instead applied Apprendi mechanically to require the jury to find all facts in aggravation irrespective of what kind they
were. 217
The limitations to the Cunningham approach are laid bare when one
considers an Apprendized parole system. If all facts increasing punishment must be found by a jury irrespective of their relationship to retribution, then the jury would completely supplant the parole board. A jury
would have to find any fact justitying unsuitability, including those related
to public safety-an area where the parole board has a clear advantage in
expertise. Grounding APPrendi in a theory of retribution serves as a kind
214. 549 U.S. 270, 295 (2007) (Kennedy,]., dissenting).
215. Bennan, Distinguishing, supra notc 213, at 287 ("When the law ties punishment
consequences to aspects of a person's past and character, .. the state is not defining what
conduct it believes merits criminal sanction, but rather is instructing judges how to view
and assess an offender's personal history at sentencing.").
216. Cunningham, 549 U.S. at 276 n.l (internal quotation marks omitted),
217. Id. at 294. This holding support'; the Court's view in Apprendi and Blakely that
the jury is a "bulwark" against "oppression and tyranny on the part of rulers," Apprendi, 530
U.S. at 477, and a "fundamental reservation of power in our constitutional structure:'
Blakely v. Washington, 542 U.S. 296, 306 (2004) (':Just as suffrage ensures the people's
ultimate control in the legislative and executive branches, jury trial is meant to ensure their
control in the judiciary."). I should note that the bulwark theory lacks detail, however. If
the jury is the bulwark, it is unclear why it should apply only to binding systems, or why it
does not apply to civil commitments. The purpose of confinement does nothing to change
its effect on a defendant's liberty, only the meaning of that deprivation. Cunningham might
ultimately reflect a skepticism about legislative labels, or an acknowledgement of the
difficulty in drawing lines between commitment offense facts that are retributive and those
that relate to public safety. For a more in-depth discussion of both points, see infra Parts
II.C.l, II.C.2.

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of compromise. It stands between the present system, where the parole
board can encroach on the jury right at will, and an alternative where the
parole board has no power. It preserves the institutional competency of
both the jury and the parole board.
2. Apprendi Factfinding and Unsuitable Life Sentences. - The Sixth
Amendment "by its terms is not a limitation on judicial power, but a reservation of jury power."2IB This power is infringed any time the jury is
supplanted-whether the judge, the parole board, or any other body is
doing the supplanting. 219 As a precursor to Apprendi explained, the Sixth
Amendment dichotomy is between jury and nonjury,220 not jury and
judge. Thus, the parole board is equally forbidden to do what ajudge is
forbidden to do.
In this Part, I first dispense with the criticism that the Apprendi protections end once a judge has pronounced the sentence. I then examine
unsuitable life sentences against the backdrop of the jury's role as the
retributive body.
a. Textual Arguments Limiting the Sixth Amendment to a Procedure. Steven Chanenson (among others) has argued that "structured parole
release" is "outside the ambit of the Sixth Amendment. "221 The text of
the Sixth Amendment refers to the accused and to "criminal prosecutions"; parole decisions involve convicted prisoners whose prosecutions
have long since concluded. 222
218. Blnkely. 542 U.S. al 308.
219. The Court has argued that, historically, the linkage of facts La punishment and
"[t]he defendant's ability to predict with certainty the judgment from the face of the
felony" underlay the Sixth Amendment. See A.pprendi, 530 U.S. at 477-83. This \~ew has
been contested vigorously. See, c.g., Blake~)', 542 U.S. at 329 (Breyer, j., dissenting)
(accepting "that, classically speaking. the difference between a traditional sentencing
factor and an clement of a greater offense often comes down to a legislative choice about
which label to affix:' but declining to conclude from this "that the Sixth Amendment
always requires identical treatment of the two scenarios"'); APlffendi, 530 U.S, at 525-29
(O'Connor,]., dissenting) ("None ofthe history contained in the Court's opinion requires
the rule it ultimately adopt'i."); Weisberg, supra note 72, at 629 (quoting Rory Little's
assertion that "[ilt's undeniable that in Apprendi the Court was wrong about its history").
The Court in Apprendi also argues that the individual's right to ajury is a procedural
protection to make society apportion punishment ex ante, through the legislature. See
Apprendi, 530 U.S. at 480 ("Where a statute annexes a higher degree of punishment to a , , .
felony, if committed under particulal- circumstances, an indictment for the offence ...
must expressly charge it to have been committed under those circumstances, and must
state the circumstances with certainty and precision." (internal quotation marks omitted».
220. Jones v. Uni'ed States. 526 U.S. 227, 243-44 (1999). The Cour' wrote:
If a potential penalty might rise from 15 years to life on a nonjury determination,
the jury's role would correspondingly shrink from the significance usually carried
by detenninations of guilt to the relative importance of low-level gate keeping; in
some cases, a jury finding of fact necessary for a maximum IS-year sentence
would merely open the door to a judicial finding sufficient for life imprisonment.
1d.
221. Chanenson, Next Era, supra note 67, at 448.
222. Id. ("[T]he Sixth Amendment applies solely to 'criminal prosecutions' and
provides rights only to 'the accused.' No such event and no such person are involved in

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The Apprendi right clearly attaches during ajudge's pronouncement
of the sentence, however, and at this stage the jury has already convicted
the offender and has been dismissed. If Chanenson were correct, then
no sentencing procedure would come under Sixth Amendment protection. Moreover, an offender has often surrendered her liberty pending
sentencing, and in some instances (depending on the state statute and
the judge's discretion) might even receive sentence credit for the jail
time she serves before the verdict or between the verdict and sentencing.
Whether or not she was convicted before or after constructively beginning her sentence cannot possibly be dispositive of whether her Sixth
Amendment rights apply.223
Chanenson's objection raises a larger question, however: Is Apprendi
a "sentencing case" at all?224 Calling Apprendi a sentencing case reifies
the idea that sentencing is somehow an entirely separate event from criminal conviction (and, a fortiori, that parole is further removed still). This
view enables us to compartmentalize Apprendi's overarching concerns
into ones dealing with discrete processes. 225 But saying that Apprendi applies at sentencing and not, say, at guilt, begs the questions "guilty of
what?" and "sentencing for what?"226 Apprendi's central concerns are
both more nuanced and expansive than that, requiring us to ask how the
determinations at one temporal stage affect the outcomes in another.
Apprendi, ultimately, tells us how facts must be tied to punishment. VVhen
something is detennined matters less than what is detennined, who decides, how sure they are, and the punishment that results. Viewed this
way, the unsuitable life sentence problem is not, in fact, parole board
the parole release process. The criminal prosecution is over. The accused is now a
convicted prisoner." (quoting U.S. Const. amend. Vl».
223. Chanenson's citations in support of his position come from cases which predate
Apprendi and one district court case from Utah. See, e.g., id. at 449 (citing POI. Bd. ofPrab.
& Parole v. Scott, 524 U.S. 357. 354 (1998); Ohio Adult Pamle Auth. v. Woodard, 523 U.S.
272, 284 (1998); Canz v. Bensinger, 480 F.2d 88, 89 (7th Gir. 1973); United States v.
Gmxford, 324 F. Supp. 2d 1255, 1254 (D. Utah 2004». Ghanenson's opinion also depends
on the view that parole release is "early" and therefore can be analyzed as a downward
departure from the maximum sentence oflife. He specifically discusses a particular policy
proposal of his, Indetenninate Structured Sentencing, in which parole release is an act of
mitigation from a judicially imposed maximum sentence. See id. at 447.
224. I am indebted Lo Jeffrey Fisher for this insight.
225. Arguably, this is one way to interpret the Supreme Court's recent decision,
Oregon v. lee, which held that a judge may find fact':i which justify the imposition of
consecutive sentences. No. 07-901, 2009 U.S. LEX1S 582, at *8 (U.S. Jan. 14, 2009).
Because the jury historically has "played no role in the decision to impose sentences
consecutively or concurrently," it was held not to implicate "the core concerns that
prompted . .. A.pprendi." ld. at *15-*16. But perhaps the case was simpler than the Court
let on-the issue of consecutive sentences had been raised and dismissed in Apprendi itself.
See infra text accompanying note 319.
226. "The decisive movement in the conjuring tlick has been made, and it was the
very one that we thought quite innocent." Ludwig Wittgcnstein, Philosophical
Investigations § 308 (G.E.M. Anscombe trans., Blackwell Publ'g 3d ed. 2001) (1953).

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resentencing so much as the parole board retrying an offender for an aggravated, parole ineligible offense fifteen or twenty years later.
b. Unsuitable Life Sentences Explicitly Contradict the Jury s Findings. Unsuitable life sentences occupy the heartland of Apprendi's retributive
concerns. Just as the judge in Apprendi made findings about the racial
animus underlying Charles Apprendi's act, the parole board finds commitment offense facts about the heinous, atrocious, or cruel nature of a
murder. These facts are not implicit in the jury's verdict: 227 In fact, a
jury cannot have found a crime heinous, atrocious, or cruel and failed to
find a defendant guilty of the parole ineligible crime of first degree murder with special circumstances. 228
If society is punishing conduct, the jury, as society's representative,
must find facts about that conduct,229 especially those facts which involve
moral concerns. AsJustice Breyer has explained, "[w]ords like 'especially
heinous,' 'cruel,' or 'depraved' ... require reference to community-based
standards, standards that incorporate values
[that a] jury is better
equipped than a judge to identify and to apply
accurately."230
These judgments are particularly retributive because the parole
board considers them in the suitability stage of the proceeding. "Unsuitability for parole" is both semantically retributive (connoting unworthiness) and methodologically distinct from calculating a release date on the
basis of public safety. Most importantly, if the crime itself is so "heinous,
atrocious, or cruel" as to make the offender unsuitable for parole, a jury
can make that finding at trial. No intervening factors justifY denial of
parole, particularly given that "heinousness" is an element of a greater
227. Cf. United States v. Booker, 543 U.S. 220. 231 (2005) (Stevens,.J.. opinion of the
Court) ("[T]he procedural error in Ring's case might have been harmless because the
necessary finding was implicit in the jury's guilty verdict ...." (citing Ring v. Arizona, 536
U.S. 584. 609 n.7 (2002»)).
228. See discussion of parole eligible and parole ineligible murder sentences supra
text accompanying notcs 43-47.
229. See Bennan, Conceptualizing Blakely, supra note 2, at 90 ("[I]fand when the law
provides that certain offense conduct will have certain punishment consequences, the law
has triggered the jury trial right ....").
230. Schriro v. Summerlin, 542 U.S. 348, 361-62 (2004) (Breyer,.J., dissenting).
Schriro held that Ring "announced a new procedural rule that does not apply retroactively
to cases already final on direct review." Id, at 358; see also Ring, 536 U.S. at 615 (Breyer,.J.,
concurring in the judgment) ("In respect to retribution, jurors possess an important
comparative advantage over judges."), This leaves open a question of whether an inmate's
expression of remorse is a factual, morally blameworthy issue, The issue is beyond the
scope of this Article, and deals with another dimension of institutional competence:
temporality, Parole boards might best consider remorse because there is no real way to
measure it at the point a sentence is imposed. For a fuller discussion of remorse in the
parole context, see generally Daniel S. Medwed, The Innocent Prisoner's Dilemma:
Consequences of Failing to Admit Guilt at Parole Hearings, 93 Iowa L. Rev, 491 (2008)
(discussing origins and purposes of parole, normative implications of relying on
admissions of guilt and expressions of remorse during parole hearings, and
recommending reforms),

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offense punishable by a parole ineligible sentence. 231 The only things
that have changed are that the parole board is a body less representative
of the public at large,232 the standard of proof is lower, and the record
has grown cold in the fifteen years or more since trial.
The parole board is well situated to analyze rehabilitation, however,
since it has access to contemporaty psychiatric and behavioral reports,
and because the offender's state of mind is examined immediately prior
to release. These are facts that neither the jury nor the judge can know at
the time of sentencing, facts that "either will not be discovered, or are not
discoverable, prior to trial. "233 These contemporary data enable the parole board to measure rehabilitation better than either the judge or the
jury could at the time of sentencing. We get better at measuring facts
about an offender's public safety risk with the passage of time; we do not,
however, get better at measuring the blameworthiness of her crime.
C. Reconciling Apprendi and Parole Due Process: Indeterminate Sentences
Serve Split Purposes
Under a mechanical application of Apprendi, such as that used in
Cunningham, the jury must find all facts, including those related to public
safety. Under this reading, the rule applies completely or not at all. In
other words, an Apprendized parole board would have no jurisdiction to
find any facts.
This Article argues for an alternate understanding of Apprendi, one
where the jury must find only those facts relating to retribution. In this
section, I explain how to separate the retributive and rehabilitative portions of California's indeterminate sentences, leaving room for an intermediate solution that reconciles parole due process cases and Apprendi.
In Part II.Gr, I address the question of who should find mixed factsthose that relate to both retribution and rehabilitation. In Part ILC.2, I
discuss how state legislatures might be limited in recharacterizing the
purposes of parole to avoid application of Apprendi at the parole stage.
231. In In re Rosenkrantz, for example, the Governor reversed parole on the ba.'iis of
the prisoner's commitment offense and went so far as to say that RosenkranlZ "should be
grateful that he was not convicted aftirst degree murder," 59 P,3d 174, 189 (Cal. 2002).
The Governor then rehashed the evidence presented at trial about premeditation, a theory
that the jury rejected in finding him guilty of second degree murder. Jd. at 215-16; see
also In re Elkins, 50 Cal. Rptr. 3d 503, 509-10 (Ct. App. 2006) (upholding Govemor's
denial on basis of "atrocious [ness]" of murder, as the "gravity, .. alone [was] sufficient" to
deny parole). There was little discussion of future threats to public safety, and much
discussion of the crime itself.
232. For retribution to be effective, the offender has to associate his punishment with
the opinion of the community. Parole boards, which are typically composed of political
appointees of the governor, are not more representative of community values than ajury,
As for their expressive component, parole boards operate in prisons, where there is little
attention paid to their decisions, and where these decisions come years after the offending
conduct.
233. Blakely v. Washington, 542 U.S. 296, 319 (2004) (O'Connor,,/., dissenting).

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The Supreme Court has indicated that all time served in prison,
including that after parole denial, is punitive."34 But using the duration of a sentence as the sole measure of the degree of punishment has
perverse results. Parole is, itself, a form of incarceration, albeit a constructive one where the prisoner serves time in the community; time
served on parole satisfies time served on a sentence. 235 Under a purely
durational reading, there is no difference between the penalties for
first degree murder with special circumstances, first degree murder,
and second degree murder: 236 All are life sentences of equal dura234. I argue that the extra time after a finding of unsuitability should be seen as
rehabilitative incarceration, provided the parole board does not find commitment offense
facts. The Supreme Court has not found that to be the case, however. Beginning with
California Department of Corrections v. Morales, 514 U.S. 499 (] 995), the Supreme Court
considered a series of challenges to changed parole regulations under the Ex Post Facto
Clause. These regulations changed the frequency of subsequent parole hearings. Id. at
501. The prisoners filed suit, claiming that this increased their punishment and was
therefore forbidden under the Ex Post Facto Clause. Id. at 508. Though their claims were
rejected, the reason for the rejection was not that extra time in prison was not punishment:
That was assumed. Instead, the Court found that these changes to the parole system did
not materially decrease the chance that they would have been found suitable for parole.
Id. at 508-09.
For a more recent view, see Justice Scalia's dissent in Oregon TJ. Ice, which argues that
total time senred is all that matters, not the purpose the incarceration serves or the stigma
involved. No. 07-901, 2009 U.S. LEXIS 582, at *26 (U.S. Jan. 14. 2009) (Scalia,].,
dissenting) (arguing that prisoner's "date of release from prison" is "the single
consequence most important to convicted noncapital defendants" and that "[t]wo
consecutive 10-year sentences are in most circumstances a more severe punishment than
any number of concurrent IO-year sentences"). If this is the case, however, parole boards
punish and in any parole system with presumptive release, Apprendi requires ajury to find
all facts. If the fact of confinement, not its meaning, is key, it is unclear why Apprendi does
not also govern civil commitment proceedings. For more on this subject, see W. David
Ball, Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the
Heart of Criminal Procedure (Apr. 24, 2009) (unpublished manuscript, on file with the
Columbia Law Review).
235. See. e.g., Morrissey v. Brewer, 408 U.S. 471, 474-75 (1972) (citing Eighth
Circuit's reasoning that parole is only "a correctional device authorizing service of
sentence outside the penitentiary"); see also Samson v. California, 547 U.S. 843, 847 (2006)
(finding California parolees have no expectation of privacy and no Fourth Amendment
protection against suspicionless searches since they are constructively in custody of state
prison system).
236. A parolee is still in the legal custody of the California Department of Corrections
and Rehabilitation (CDCR). Cal. Penal Code § 3056 (West 2000): see also Samson, 547
U.S. at 851 ("A California inmate may senre his parole period either in physical custody,
or ... out of physical custody and subject to certain conditions. Under the latter option,
an inmate-turned-parolee remains in the legal custody of the California Department of
Corrections through the remainder of his term ...." (internal citation omitted)). Most
prisoners have an enumerated term of parole, but "[i]n the case of any inmate sentenced
under Section 1168 for any offense of first or second degree murder with a maximum term
of life imprisonment, the period of parole, if parole is granted, shall be the remainder of
the inmate's life." Cal. Penal Code § 3000.1(a). However, the functional maximum parole
tenn is five years for second degree murder and seven years for first degree murder. The
California Penal Code directs the parole board to discharge people from parole after that

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tion. 237 Dispositional issues or stigmatic issues must, therefore, be considered a~ important and distinguishing dimensions of a sentence. Otherwise, there is simply one sentence for murder, no matter what the degree:
life.
One could argue that the problem with applying Apprendi to indeterminate sentences is that in indeterminate sentences, nonretributive concerns dominate. As in Williams, there is no need for a jury to find facts
where the system serves nonretributive goals. Perhaps purely indeterminate sentences serve this purpose,238 but California's indeterminate
sentences contain definite terms of punishment: the enumerated terms
of years. Judges in California have no discretion over how many years a
prisoner must serve before becoming eligible for parole. This term is
assuredly a retributive component, assessed for the offense, and thus governed by Apprendi.
Because California's indeterminate sentences have both retributive
and rehabilitative components-a lengthy term of years followed by discretionary parole release-they provide a unique opportunity to isolate
the meaning of incarceration from its duration. With determinate
sentences, it is difficult to isolate stigmatic punishments from durational
ones, since in most instances-including every case in the Apprendi linethe state punishes more stigmatized crimes with longer sentences. In a
certain sense, a determinate sentence is nothing but punishment. 239
With an indeterminate sentence, however, stigma and duration are separable. Prisoners convicted of different degrees of murder might end up
serving similar amounts of time, but the degree of the murder assigns a
different amount of stigma to each. A second degree murderer is less
blameworthy than a first degree murderer. If he serves a longer sentence, it is because he is more dangerous, not because his crime is worse.
Because indeterminate sentences more cleanly separate the issues of
period unless the board makes a "good cause" determination to retain them.

Id.

§ 3000.1 (b).
237. This line of reasoning also conflicts with existing cases about the liberty interest
in parole. The type of lime is a necessary dimension of a person'5 liberty interest;
otherwise, there would be no difference between the due process rights in parole
revocation and prospective parole release. See infra Part III.A.I; see also supra notc 154.
238. Prior California indeterminate sentences were as vague as "one year to life." The
enumerated tenn was merely long enough to make the crime a felony, at which point the
state could incarcerate the offender in a state prison. See Cunningham v. California, 549
U.S. 270, 276-77 (2007) (explaining that for sixty years under California's indeterminate
sentencing regime, courts imposed open-ended tenns and parole board "determined the
amount of time a felon would ultimately spend in prison"'). I do not claim that these old
indeterminate sentences were necessarily hybl;ds, with only the enumerated term of a
single year denoting the punishment. However, modern enumerated terms, with degrees
of offense paired to longer enumer:.Hed terms, fit the "split purpose" analysis. For a more
exact definition of "split purpose," see infra text accompanying note 240.
239. Of course, one could also argue that what makes a crime more stigmatized is the
length of its sentence; we measure society's degree of disapproval of a crime by the way in
which we punish it.

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blameworthiness and time served, they help isolate why Apprendi requires
jury findings in some instances and permits nonjury findings in others.
The two parts of an indeterminate sentence ultimately serve what I
call "split purposes." The enumerated term of years exhausts the punishment for the crime and the rest of the sentence measures rehabilitation.
This split purpose lays the foundation for how the parole due process
cases and Apprendi should be reconciled. I propose that Apprendi be reserved only for the retributive part of the sentence and that retribution
for the commitment offense should end with the enumerated term of
years. The parole board, in turn, should retain its deference when it measures rehabilitation, but only for that purpose-not for moral facts like
"heinousness."
A split purpose interpretation would preserve the statutory construction of the California homicide statute. That is, first degree murder and
second degree murder would still be punished as different crimes, with
different levels of stigma, even though a prisoner convicted of second
degree murder could end up serving the same amount of time (or more)
as a prisoner convicted of first degree murder. 240 Allowing a parole
board, rather than a jury, to make rehabilitation-related decisions under
the split purpose analysis also accords with traditional deference to prison
officials to deal with in-prison issues and corrections decisions. Expert,
repeat players can still access all the information necessary to come up
with the most accurate "treatment plan," as long as their decision is about
public safety risk, not stigmatic or punitive issues that relate back to the
original crime."" This split provides an ideal test case for distinguishing
240. Courts have heretofore dealt with this problem by unfailingly reading parole
release as "carly." The bulk of this Article is dedicated to showing why this is theoretically
problematic. It is also incorrect as a matter of statutory interpretation since in many states,
including California, a prisoner is presumptively released absent a specific finding of fact
to the contrary. In fact, in both Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1 (1979), and Bd. of Pardons v. Allen, 482 U.S. 359 (1987), the Supreme Court found
that the state parole statute granted parole release presumptively. See infra Part lILA.
Calculating a release date-the second stage of the parole process-would also
require jury findings for certain calculations that increased sentence time. The release
date matrix for second degree murder, for example, includes characteristics about the
murder victim (the victim was an "accomplice or othenvise implicated in a criminal act"
with the offender (minimum), the victim had a personal relationship with the offender
(medium), or there was no personal relationship (maximum)) and the level of the
offender's participation in the murder (indirect/accomplice liability (minimum), victim
initiated struggle (medium), death the result of "severe trauma inflicted with deadly
intensity" (maximum». Cal. Code Regs. tit. 15, § 2403(c) (2005). Because the matrices
are binding, ajury would have to find each of these facts beyond a reasonable doubt before
the board could calculate a sentence based on them. If all time served is punitive, then the
calculation of the release date is also subject to Apprendi scrutiny.
241. A criminal conviction gives the parole board the discretion to make decisions
about everything attendant to the execution of the sentence. It cannot give the board
discretion to extend the conviction to an aggravated form of the commitment offense,
however, any more than "ajudge could sentence a man for committing murder even if the
jury convicted him only of illegally possessing the firearm used to commit it." Blakely v.

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facts about an offender from facts about an offense 242 in a manner which
is coextensive with case law that understands incarceration as distinct
from punishment. 243 Finally, my proposal solves a practical problem:
Applying Apprendi to every fact that a parole board considers-that is,
reading it mechanically, separate from the meaning of punishmentwould be an administrative nightmare. The jury would have to find facts
about psychiatric evaluations, a prisoner's post-release employment plans,
and social history.
Adopting the retribution/rehabilitation distinction limits the
Apprendi line's control to "the central sphere of [its] concern, while reducing the collateral, widespread harm to the criminal justice system and
the corrections process."244 It does leave two questions, however. First,
what should be done with facts which are indicia both of reprehensibility
and threats to public safety? Second, what would prevent the parole
board from finding retributive facts under the guise of public safety? I
address each in tum.
1. Who Should Find Mixed Retributive/Public Safety Facts? - The commitment offense is not only probative of moral culpability; it might also
provide some evidence of a threat to public safety.245 Murderers are
blameworthy because they have murdered, but they are also dangerous
Washington, 542 U.S. 296, 306 (2004). Thus, if a conviction authorizing the parole
board's discretion failed to find the crime heinous, atrocious, or cruel, the discretion it
grants does not include the power to find the crime heinous, atrocious, or crueL
242. It is unclear, however, that the current regulations governing the calculation of a
release date would survive even under this theory. To the extent they rely on commitment
offense facts, they would have to be found by the jury beyond a reasonable doubt. I would
argue that guidelines, as opposed to actuarial tables, are inherently retributive. Guidelines
express a judgment about the time one should get for a given set of facts. They can be
distinguished from actuarial tables, which measure the probable public safety risk
associated with a given set of facts.
243. See Kansas v. Hendricks, 521 U.S. 346, 363 (1997) ("'[T]he mere fact that a
person is detained does not inexorably lead to the conclusion that the government has
imposed punishment.'" (quoting United States v. Salerno, 481 U.S. 739, 746 (1987»)); see
also Soling v. Young, 531 U.S. 250, 272-73 (2001) (Thomas,]., concurring) (explaining
that confinement is not dispositive factor in making sanction criminal); Hendricks, 521 U.S.
at 363 ("If detention for the purpose of protecting the community from harm necessarily
constituted punishment, then all involuntary civil commitments would have to be
considered punishment. But we have never so held.").
A state's power to confine someone to protect the public safety under its parens
patriae power is well established. Civil commitments require the state to show cause of
future dangerousness every few years, but a state can confine someone indefinitely upon
this showing. Civil commitments are specifically nonpenological, of course, and the laws
governing them are not located in the penal code. See, for example, California's Sexually
Violent Predators Act, which seeks to protect against the "sexually violent criminal
behavior" of a person "who has been convicted of a sexually violent offense . . . and who
has a diagnosed mental disorder that makes the person a danger to the health and safety of
others." Cal. Welf. & Inst. Code § 6600(a) (West 1998 & Supp. 2008).
244. Cunningham v. California, 549 U.S. 270,295 (2007) (Kennedy,]., dissenting).
245. See Berman, Conceptualizing Blakely, supra note 2, at 91 (explaining that certain
facts "involve a mix of offense conduct and offender characteristics").

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because they have murdered. Despite Justice Kennedy's claim that "in
most instances ... the problem of categories would not be difficult,"246
the commitment offense is irreducibly both a particle and a wave.
This Article did not create the mixed fact problem, nor will it attempt to solve it definitively. The problem has been addressed in other
areas of the law, however, and I will look to one particularly salient example-the use of criminal priors in sexually violent predator (SVP) lawsas a means of sketching out some of the terrain. In SVP proceedings,
prior crimes are considered as evidence of future dangerousness, not as
justification for punishment. 247 There is some concern, however, that despite the taxonomically civil label of these procedures, they are functionally serving to repunish the offender. 248 We might be able to borrow
some of the tools from this line of jurisprudence to move toward a substantive definition of punishment. 249
But while I acknowledge the difficulty (or impossibility) of determining whether a fact is, in the abstract, more probative of iniquity or dangerousness, the concern in this Article is much more limited: Even if the
commitment offense is a mixed fact, the issue is whether the parole board
should be the body to consider its effects on dangerousness. Here 1 think
the answer is no. First, the California parole board has, in fact, turned
into a retributive body, so the danger of punishment overwhelming public safety is real. Second, the parole board's relative expertise does not
extend to the commitment offense. If a nonjury body needs to consider a
commitment offense's public safety ramifications, a judge is in a much
better position than the parole board to do so. The judge is present at
246. Cunningham, 549 U.S. at 297 (Kennedy,]., dissenting).
247. See, e.g., Hendricks, 521 U.S. at 361-62 (finding Kansas statute only sees past
behavior as evidence of mental abnonnality or future dangerousness).
248. See, e.g., id. at 373-74 (Breyer,]., dissenting) ("[C]ertain ... special features of
the Act convince me that it was not simply an effort to commit Hendricks civilly, but rather
an effort to inflict further punishment upon him."); Allen v. Illinois, 478 U.S. 364, 376-77
(1986) (Stevens,j., dissenting) ("Neither the word 'civil' nor the unsettling term applied
by the State-'sexually dangerous pcrson'-should be penniltcd to obscure our
analysis.") .
249. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), for example,
established a widely used seven factor test to determine whether a law is criminal or civil:
Whether the sanction involves an affinnative disability or restraint, whether it has
historically been regarded as a punishment[,] whether it comes into play only on
a finding of scienter, whether its operation will promote the traditional aims of
punishment-retribution and deterrence, whether the behavior to which it
applies is already a crime, whether an alternative purpose to which it may
rationally be connected is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned ..
Id. (internal footnotes omitted). Most of these factors do not apply to a law that is
expressly criminal; however, the notion of proportionality (factor seven) would be
particularly useful in situations where second degree murderers serve the equivalent of a
first degree sentence. See supra text accompanying note 150. Under this test, the
sentence length might be found to be disproportionate, hence punitive, even if the
commitment offense facts were nominally used as indicia of public safety.

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trial and makes his or her decisions based on a fresh record. The parole
board reads a cold record, and the hearing provides only a new opportunity, not a new basis, to reconsider the commitment offense. Given the
lax standards of review given to parole board decisions, the potential for
the mixed fact exception to swallow the rule is, literally, unbounded by
judicial oversight. If a parole board can deny parole on the basis of the
commitment offense alone, there is currently no way to cure abuses
through the judicial system. Judicial sentences, meanwhile, can always be
reviewed by higher courtS. 250
Finally, because a commitment offense's effect on public safety
would not be dispositive in most cases, the problem is merely an interesting possibility, not an actual obstacle. Dangerous prisoners give fresh evidence of their threats through disciplinary infractions, failure to participate in rehabilitative programming, and poor psychiatric diagnoses. A
parole board can cite these factors in finding a prisoner unsuitable. The
only case in which the commitment offense is dispositive of dangerousness, therefore, is when a prisoner has no institutional infractions, and
the parole board literally has no other evidence of unsuitability. No actuarial tool measuring the risk of recidivism "attempts to predict future dangerousness by virtue of the commitment offense alone. "251
250. One additional argument might be made-that the legislature, not the judiciary,
should make the call about who has jurisdiction over mixed facts. Under this viewpoint,
the legislature has already decided to give mixed facts to the parole board. The
indeterminate sentence is authorized precisely because the legislature is sufficiently
concerned about public safety not to run the risk of releasing a dangerous prisoner after a
determinate sentence. So if a parole board has discretion to consider public safety, why
deny it the discretion to consider the public safety effects of a murder? Perhaps there
should be no limitation on the factors the parole board can consider, as long as it is
considering public safety and not retribution. See John Monahan, AJurisprudence of Risk
Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va. L. Rev.
391, 395 (2006) (discussing how, in civil commitment context, where "a legal
determination about future conduct in which blameworthiness for past conduct plays no
part ... the use of violence risk factors ... is jurisprudentially unconstrained except for
classifications subject to strict scrutiny" under the Equal Protection Clause). This line of
argument would seem to be foreclosed by the Apprendi line, but Oregon v. Ice resurrected
Patterson v. New York, citing it to support a state legislature's sovereign interest in
structuring its criminal justice system. Oregon v. Ice, No. 07-901, 2009 U.S. LEXIS 582, at
*20 (U.S. Jan. 14, 2009) (citing Patterson v. New York, 432 U.S. 197,201 (1977»; see also
infra note 383 (discussing Patterson-era case law).
251. Brief for Stanford Criminal Justice Center as Amicus Curiae Supporting
Petitioner Sandra Davis Lawrence at 14-15, In re Lawrence, 190 P.3d 535 (Cal. 2008) (No.
5154018) (on file with the Columbia Law Review) (emphasis omitted) (discussing
"vociferous" academic debate about merits of different models that exist, with this
conclusion).
As an empirical matter, recidivism for lifers is much lower than the rate for the prison
population as a whole: Only about a fifth oflifers are rearrested, compared with two-thirds
of all released prisoners. Mauer et aI., supra note 34, at 24. Those paroled lifers who are
rearrested are no more likely to be rearrested for a violent offense than are those offenders
who were initially incarcerated for drug or property offenses. Id. (Of course, some might
argue that the system is working because of these low recidivism numbers, and only the

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2. Relabeling Desert as Public Safety. - Another loophole might be for
the parole board to cite public safety and really mean desert. For example, it could remove the "heinous, atrocious, or cruel" language it uses to
describe the commiunent offense. So even if the parole board were restricted to public safety considerations, it could simply expand the factors
that bear on public safety, and describe them in morally neutral terms.
California already uses this method of recharacterization in the second stage of the parole process, during the calculation of a release date
for a suitable prisoner. The release date matrix for second degree murder, for example, includes characteristics about the murder victim and
the level of the offender's participation in the murder. 252 Clearly these
facts themselves are not used for stigmatic or expressively retributive purposes, but because the matrices are binding,253 they would pose an
Apprendi issue under a purely mechanical reading that does not consider
the offense/offender distinction.
Apprendi's "functional" analysis, which works well in other areas of
the doctrine, is of little use here. Function in terms of what operates to
constitute a crime is easy.254 Function in terms of meaning is more difficult. It is hard to lie about what you're doing, but much easier-at least
for lawyers-to lie about why you're doing it. Given the deference to parole board decisions, it would be difficult to scrutinize the "real" meaning
behind either a parole regulation or a parole board decision, although,
safe are being released. The number of prisoners released in California is vanishingly
small, however, supra text accompanying notcs 144-151, so by this logic, California could
guarantee a recidivism rate of zero by transforming all murder sentences into life without
the possibility of parole.)
Commitment offense facts are also much less probative than fact'i about more recent
behavior,such as programming, discipline, and psychiatric reports. The commitment
offense
may indicate a petitioner's instability, cruelty, impulsiveness, violent tendencies
and the like. However, after fifteen or so years in the caldron of prison life, not
exactly an ideal therapeutic environment to say the least, and after repeated
demonstrations that despite the recognized hardships of prison, this petitioner
does not possess those attributes, the predictive ability of the circumstances of the
crime is near zero.
Irons v. Warden of Cal. State Prison-Solano (fronsl). 358 F. Supp. 2d 936, 947 0.2 (E.O.
Cal. 2005).
The Ninth Circuit recently endorsed this proposition in Ha)'\v<\rd v. Marshall, 512 F.3d
536, 545 (9th Cir. 2008). The circuit court concluded that Hayward's educacion and
conduct in prison meant that his "commitment offense, which occurred twenty-five years
ago, cannot demonstrate that Hayward's release will pose an imminent danger to public
safety." [d. at 546.
252. Cal. Code Regs. tit. 15, § 2403(c) (2005). For details of specific characteristics
included in the matrix, see supra note 240.
253. Id. § 2403(a) ("The panel shall impose the middle ba'ic term renected in the
matrix unless the panel finds circumstances in aggravation or mitigation.").
254. See infra Part IV (discussing how under AppTendi's functional definition of
"crime," what is important is what statutes actually do, not what they purport to do).

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arguably, that is exactly what the California Supreme Court tried to do in
In re Lawrence. 255
But the stated reason for a given action has been deemed important
in other areas of the law, particularly when the stated reason is stigmatic.
For example, in Brown v. Board ofEducation, the Supreme Court held that
school segregation violated the Equal Protection Clause. 256 Brown was
not self-enforcing, however, and the principle it established required concerted efforts in both the political and judicial realms; even though the
principle was clear, it was difficult for courts to figure out which practices
constituted clandestine or de facto segregation. 257 Ultimately, a determined government can always find new ways to achieve a foreclosed result, but judicial restrictions on the means it can use to do so are nevertheless important: How we do something communicates important
messages about what we mean by doing something. 258 Restricting parole
findings to public safety means the debate is about who is safe to be let
out-not who deserves to be let out. A Supreme Court holding that parole
cannot be retributive will not cure all the ills of a system, but it can frame
the debate in a way that helps us confront the real issues at hand.
III.

SENTENCE LtMtTATIONS

What, if anything, limits a parole board's power to find a prisoner
unsuitable for parole? Can a parole board find a prisoner unsuitable indefinitely? While Part II argues that the relative competencies of criminal
justice institutions should determine the kinds offact~ they can consider,
this Part explores the limits of what they can do with those facts. The
issue, once again, turns on the definition of punishment. While Apprendi
applies to retributive facts throughout both the imposition and the execution of the sentence, Apprendi places no limits on a parole board's consideration of nonretributive facts. Under a split purpose interpretation of
indeterminate sentencing, the jury verdict limits the state's power to punish to the enumerated term of years, while it allows a parole board to
detain prisoners indefinitely on the basis of public safety.
Part IILA examines extant parole due process jUrisprudence in
depth, arguing that it places no real limits on parole board decisionmak255. 190 P.3d 535 (Cal. 2008). Lawrence essentially reads the plain text of the
California parole statute and requires something more than simply finding factors that
indicate dangerousness. Id. at 546-49. That is to say. the parole board has to rcally mean
that the particular factors it cites in this particular case indicate that this particular
prisoner is dangerous. It is a tcst of sincerity, It changes nothing about the statute, only
what the parole board is to emphasize when complying with it.
256. 347 U.S. 483, 495 (1954).
257. See generally Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the
First Half Century of Brown v. Board oj Education 124-34 (2004).
258. See infra note 386 and accompanying text (discussing how transparency in
operation of criminal laws is crucial interest underlying Apprendi); infra text accompanying
note 332 (explaining why changing parole regulations is theoretically possible, but not
necessarily probable or even logical).

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ing. Part IlI.B then shows how applying Apprendi along retributive/rehabilitative lines would effectively restore parole as a rehabilitative sentencing tool.
A. Parole Cases and the Expectancy of Release

Supreme Court parole cases place no limit on the amount of time a
prisoner can serve after his parole eligibility date, analyzing the issue via a
messy, underdefined series of due process cases. According to this line of
cases, a parole board is free to deny parole for whatever reason, on
whatever facts, for however long. Part liLA. I examines the limited liberty
interest a prisoner may have in parole. Part IlI.A.2 discusses this liberty
interest in the context of unsuitable life sentences.
1. The Liberty Interest in Parole. - The Supreme Court has generally
held that the liberty interest in parole is greatest when an offender has
already been released into the community: The state may not revoke parole and return an offender to prison without some minimal process. 259
The Court has also generally held that there is no inherent liberty interest in an incarcerated prisoner's prospective release into parole. 26o Ultimately, the liberty interest in parole suitability depends on the parole statute-if the statute grants an expectation of parole, then some process is
due. 261
The reason that this description only applies generally is that the
Supreme Court has vacillated on the method it uses to evaluate the liberty interest in parole release. Morrissey v. Brewer, a 1972 parole revocation case, looked to the nature and weight of the liberty interest involved
to determine what, if any, due process protections applied: 262 Only a
"grievous loss," "one within the contemplation of the 'liberty or property'
language of the Fourteenth Amendment," is protected. 263 Seven years
later, the Supreme Court abandoned Morrissey's nature and weight methodology in Greenholtz, looking instead to the statutes involved. Greenholtz
analyzed the liberty interest in prospective parole release by looking to
259. Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).
260. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)
("There is no constitutional or inherent light of a convicted person to be conditionally
released before the expiration of a valid sentence ... [because] the conviction, with all its
procedural safeguards, has extinguished that liberty right."), Absent a statutory right, the
possibility of parole is but "a mere hope that the benefit will be obtained." Id. at 11.
261. Id. at 12 ("We can accept respondents' view that the expectancy of the release
provided in this statute is entitled to some measure of constitutional protection.").
262. Both offenders admitted the parole violations of which they were accused, but
alleged that they had been denied due process because their paroles were revoked without
hearings, Morrissey, 408 U.S. at 473-74, a striking parallel to the petitioner in Apprendi, who
pleaded guilty to the charges but successfully appealed on the basis of the due process jury
trial rigbt, Apprendi v. New Jersey, 530 U.S. 466, 470-71 (2000).
263. l\Jorrisey. 408 U.S. at 481 (internal citations omitted).

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whether the statute created a "protectible expectation of parole"264 that
"is entitled to some measure of constitutional protection."265 In 1987,
Bom'd of Pardons v. Allen again looked to a state parole statute to find a
protected liberty interest,266 rejecting the argument that the discretion
vested in parole board officials outweighed the statutorily created interest
in release. 267
By the early 1990s, then, Morrissey's nature and weight methodology
was left for dead. 268 In 1995, however, the Supreme Court revived
Morrissey's method in Sandin v. Conner. 269 The Court criticized
Greenholtz's holding that statutes and regulations can create liberty interests,270 complaining that it was forced to "wrestle[ ] with the language of
intricate, often rather routine prison guidelines to determine whether
mandatory language and substantive predicates created an enforceable
expectation."271 Greenholtz also encouraged "prisoners to comb regula264. Greenholtz, 442 U.s. at 11. Even if a statutory expectation exists, however, there
need not be "repeated, adversary hearings in order to continue the confinement." Id. at
14.
265. Id. at 12. The Supreme Court held that the Nebraska parole statute granted a
protected expectancy of parole release through "the structure of the provision together
with the usc of the word 'shall' , ..." Id. at 11-12. It found no inherent liberty interest in
parole, however. Id. at 7.
266. 482 U.S. 369, 376-77 (1987).
267. The district court found that the Montana parole statute contained language
mandating release, but concluded that the board's discretion was "too broad to provide a
prisoner with a liberty interest in parole release." Id. at 372. The Ninth Circuit reversed:
While the statute vested "great discretion" in the parole board, the board could not deny
parole "once it determines that harm is not probable." Id. (internal quotation marks
omitted). The Supreme Court affirmed. Id. at 381.
268. See, e.g., Thomas J. Bamonte, The Viability of Morrissey v. Brewer and the Due
Process Rights of Parolees and Other Conditional Releasees, 18 S. Ill. U. LJ. 121, 124
(1993) ("Morrissey's apparent viability is deceptive ... [because] the role played by parole
in the correctional system has changed substantially over the twenty years since Morrissey
was decided.").
269. 515 U.S. 472 (1995). Prisoner Conner had been sent to administrative
segregation ("the hole") for a disciplinary infraction and had not been allowed to present
witnesses at his disciplinary hearing. Id. at 475-76. Sandin is one in a line of prison due
process cases, such as Turner v. Safley, where the Supreme Court was willing to defer
substantially to prison officials and their legitimate penological interests, even where they
impinged on core constitutional rights. See, e.g., Turner v. Safley, 482 U.S. 78,81 (1987)
(upholding restrictions on inmate correspondence against First Amendment challenge,
but striking down restrictions on inmate marriages). But see Johnson v. California, 543
U.S. 499, 509 (2005) (applying strict scrutiny to California's practice of racially segregating
inmates during prison intake). For more on the revival of Morrissey, see generally Sharif A.
Jacob, Note, The Rebirth of Morrissey: Towards a Coherent Theory of Due Process for
Prisoners and Parolees, 57 Hastings LJ. 1213, 1226 (2006).
270. Sandin, 515 U.S. at 479-81. It is unclear, however, how parole statutes or
regulations that create a presumption of parole release are different from sentencing
statutes or regulations that create presumptive (or functional) statutory maxima. See infra
Part IV.B.!.
271. Sandin, 515 U.S. at 480-81. The Prison Litigation Reform Act (PLRA) requires
inmates to exhaust all their administrative appeals before filing suit in court. 42 U.S.c.

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tions in search of mandatory language."272 The Court therefore "retum[ed] to due process principles" and held that the states could generally create only those interests related to freedom from restraint which,
while not so unexpected "as to give rise to protection by the Due Process
Clause of its own force ... nonetheless impose [d] atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison
life. "273
The Supreme Court used Sandin to find an inherent, protected liberty interest-one which involved eligibility for parole-in Wilkinson v.
Austin. 274 The decision to place an offender into a "supermax" facility,
which rendered otherwise eligible prisoners ineligible for parole, constituted an "atypical and significant hardship" and thus required procedural
protection. 275 While there was no "liberty interest in avoiding transfer to

§ 1997e(a) (2000). Prison regulations are thus stacked against the prisoner-they afford
no protection, but they create all sorts of hurdles for prisoners filing suit. Prisons have an
incentive to write Byzantine regulations as a fonn of protection against lawsuits. None of
the regulations will bind them negatively, and jf a prisoner fails to observe any of the
niceties therein, he or she will be barred from filing suit to reach the substance of his or
her complaint.
272. Sandin, 515 U.S. at 481. Indeed, Justice Ginsburg, in dissent, noted this
"practical anomaly" which applies equally to sentencing laws: "[A] State that scarcely
attempts to control the behavior of its prison guards may, for that very laxity, escape
constitutional accountability; a State that tightly cabins the discretion of its prison workers
may, for that attentiveness, become vulnerable to constitutional claims." Id. at 490
(Ginsburg,]., dissenting). (Kevin Reitz has noted a similar problem with the Apprendi line.
See supra note 207.) Justice Ginsburg thought the prison officials' behavior was itself a
deprivation ofliberty under the Due Process Clause. Sandin, 515 U.S. at 491 (Ginsburg,].,
dissenting) .
273. Sandin, 515 U.S. at 483-84 (majority opinion). Note that there are potentially
two separate due process claims: one where due process arises out of its own force
(presumably a practice or incident that shocks the conscience or is arbitrary and
capricious), and one that imposes an atypical and significant hardship. Because the Hawaii
state prison's action did not "present a dramatic departure from the ba.'iic conditions of
Conner's indetenninate sentence," the state did not create a liberty interest in its decision.
1d. at 485-86.
Ironically (or incoherently), the Sandin Court argued that a prisoner would not
necessarily serve more time for discipline infractions because he would have "procedural
protection at his parole hearing in order to explain the circumstances behind his
misconduct record." Id. at 487. This protection came, stupefyingly, from the state's
administrative rules-the rules that Sandin said created no liberty interest. Id. Thus,
regulations which do not protect inmates at disciplinary hearings are of no consequence
because other regulations do protect them during parole hearings-even though due
process guarantees the presence of neither.
274. 545 U.S. 209, 224 (2004).
275. Id. at 223. An inmate could be sent to the supermax prison if he were convicted
of certain crimes, or upon certain behaviors in prison. Id. at 216. This decision did not
depend on any independent findings of fact about the commitment offense, however. Id.
at 216-17.

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more adverse conditions of confinement,"276 inmates' ineligibility for parole during confinement in the supermax facility, coupled with the duration of time a prisoner could spend there, "impose[d] an atypical and
significant hardship within the correctional context."277 By this reasoning, eligibility for prospective parole release is sufficiently weighty to create a protectible liberty interest.
It is unclear whether a statute can still create a protectable liberty
interest in parole. 278 Wilkinson stated that "Sandin abrogated
Greenholtz's ... [statutory] methodology."279 But Sandin itself stated that
abandoning statutory methodology "[did] not technically require [it] to
overrule any holding of this Court. "280
The Ninth Circuit has taken its own approach in analyzing the due
process limits of parole denials, holding that unsuitability findings based
on unchanging factors can violate due process. Here the unchanging factors include not only the commitment offense but also the inmate's prior
record and his social history before incarceration. In Biggs v. Terhune, the
Ninth Circuit denied the habeas petition of a prisoner challenging his
unsuitable life sentence but suggested in dictum that "continued reliance
in the future on an unchanging factor" could ultimately "result in a due
process violation."28l The Ninth Circuit cited the Biggs dicta in two cases
without applying it 282 before holding that a state's reliance on the commitment offense, a "stale and static factor," violated a prisoner's due process rights."8'
276. [d. at 221. These conditions involved "extreme isolation" in a seven-by-fourteen
foot cell where the light was always on and the architecture prevented conversation or
communication with other inmates. [d. at 214.
277. Id. at 221. The Supreme Court ultimately held that the process the state
employed was sufficient to prevent erroneous placement, however, and found no due
process violation. Id. at 225.
278. The Supreme Court has yet to apply Sandin (or reapply Aforrisscy) in a case
explicitly about the denial of parole. Wilkinson, however, turned to these cases to assess the
constitutionality of classifications affecting a prisoner's eligibility for parole.
279. n'ilkinson, 5·15 U.S. at 229.

280. Sandin v, Conner, 515 U,S, 472, 483 n.5 (1995),

The decision "only

abandon[cd] an approach that in practlce is difficult to administer and which produces
anomalous results." ld.

281. 334 F,3d 910, 917 (9th CiL 2003),
282, See Irons v, Carey (Irons /1), 505 F,3d 846, 853-54 (9th CiL 2007) (finding no
due process violation in part because Irons's suitability determination was made before
expiration of minimum tenn of years); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123,
1129 (9th Cir. 2006) (declining to follow Biggs dicta because of Antiterrorism and Effective
Death Penalty Act of 1996 requirement that habeas be granted only where state decisions
upholding parole denial are "contrary to ... or involve an unreasonable application of,
clearly established Federal law as determined by the Supreme Court").

283. Ha}Ward v, Marshall, 512 F,3d 536, 546-47 (9th CiL 2008), In graming
Hayward's habeas petition, the Ninth Circuit focused primarily on whether there was
"some evidence" supporting the Governor's reversal of the parole board's decision to grant
parole. Id. at 544. After concluding that "no evidence" supported the Governor's
decision, the panel independently held that the Governor's reliance on an unchanging
factor violated due process. Id. at 544, 546-47 ("[T]he unchanging factor of the gravity of

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Biggs did not address Morrissey, Greenholtz, or Sandin, and is not good
law outside the Ninth Circuit. Nevertheless, it may illustrate one way in
which courts might construe an inherent liberty interest in parole release.
In Wilkinson, where the state's interest in controlling dangerous, undisciplined inmates was paramount,284 the Supreme Court identified some
interest in ongoing suitability hearings. Conducting repeated parole
hearings and denying each time on the same facts might therefore constitute an atypical and significant hardship. All of this analysis is speculative,
though; post-Biggs cases do not explain the meaning behind the Biggs
dictum or situate it within the existing due process jurisprudence, but
instead focus on whether the number of denials has caused the due process interest to ripen. 285
2. The Liberty Interest in Parole Applied to Unsuitable Life Sentences. Given the uncertainty in the parole due process line, it is unclear whether
a California prisoner has a liberty interest in parole release, and, if so,
whether an unsuitable life sentence deprives him of this interest without
due process of law. If Greenholtz governs, we look to the California parole
statute to see if it creates an expectation of parole. If Morrissey or Sandin
governs, we look to the ordinary incidents of punishment-which, under
Wilkinson, might require some regular opportunity for parole release. 286
Under the Greenholtz statutory method of analysis, courts look to see
whether the parole statute creates a protected liberty interest in paHa)"'Vard's commitment offense had no predictive value regarding his suitability for parole
[and i]n the circumstances of this case, the Governor \~olated Hayward's due process
rights by relying on that stale and static factor in reversing his parole grant."}, At the same
time, the court limited its holding in a footnole that explained that "certain conviction
[sic] offenses may be so 'heinous, atrocious, or cruel' that a prisoner's due process rights
might not be violated ifhe or she were denied parole solely on ... [that] basis." Id, at 547
n.l0.
284. Sec Wilkinson, 545 U.S. at 227 ("Prison security, imperiled by the brutal reality of
prison gangs, provides the backdrop of the State's interest."); see also id. at 229
("Prolonged confinement in Supermax may be the State's only option for the control of
some inmates .... ").
285. Note, however, that Sass tried to tie the Biggs dictum to the arbitrariness
concerns of the Due Process Clause. Sass, 461 F.3d at 1129. It is arbitrary if the crime that
has rendered onc unsuitable for parole suddenly poses no obstacle. The magistrate in
Irons v. Warden oj California State Prison-Solano (Irons /) also argued that, in Irons's
unsuitable life sentence, the parole board would either make the same finding about the
commitment offense each year or make a different decision on the same facts-an
argument which clearly raises "arbitrary and capricious" due process concerns. 358 F.
Supp. 2d 936, 947 (E.D. Cal. 2005); see also In re Criscione, No. 71614, slip op. at 20 (Cal.
Super. Ct. Aug. 30, 2007). available at http://www.bayareanewsgroup.com/multimedia/
rnn/ncws/Cliscione_complainc091307.pdf (on file with the Columbia Law Review) ("The
fact that Title 15, § 2402, has been invoked in every case, but then sometime later not
invoked, tends to show either completely arbitrary and capricious behavior or that
unwritten standards are what really determine outcomes.").
286. Or at least a parole hearing. Then again, if we are really to look at the nature
and weight of the right, depriving someone of a parole hearing that is essentially an empty
fonnal gesture seems unlikely to generate an interest of sufficient weight that Wilkinson
would deem it wonhy of protection.

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role. 287 Even under this method, however, it is unclear whether the
mandatory language in the California statute creates such an interest.
While the California parole statute is nearly identical to the statutes
Greenholtz and Allen identified as creating a protectible liberty interest in
parole,2BB the California Supreme Court in Dannenberg held that the "statutory concern for public safety in the individual case trumps any expectancy the indeterminate life inmate may have."es9 According to the
Ninth Circuit, however, Dannenberg did "not explicitly or implicitly hold
that there is no constitutionally protected liberty interest in parole."29o
Instead, it simply "addressed the nan-ow question whether the Board
must engage in a comparative proportionality analysis in setting parole
dates ... before determining whether an inmate is suitable for parole."291
Thus, California might have created a protectable liberty interest by statute, in which case due process might limit the practice of unsuitable life
sentences.
Under the Morrissey/Sandin "nature and weight" method, we look to
see if unsuitable life sentences impose an atypical and significant hardship on prisoners. 292 Wilkinson held that classification affecting parole
eligibility can impose such a hardship. A court might therefore look at
whether California classifies parole eligible prisoners differently from parole ineligible ones as evidence of what might be an atypical and significant hardship. In California, prisoners who serve parole ineligible
sentences are automatically classified in maximum security prisons, while
287. See supra notcs 264-265 and accompanying text.
288. Compare Cal. Penal Code § 3041 (b) (West 2000 & Supp. 2008) (explaining that
the board "shall set a release dale unless it determines ... that the consideration of the
public safety requires a more lengthy period of incarceration")' with Sci. of Pardons v.
Allen, 482 U.S. 369, 376-77 (1987) ("'SUbject to the following provisions, the board shall
release [a prisoner] on parole ... [but] only when the board believes that he is able and
willing to fulfill the obligations of a law-abiding citizen.''' (quoting Mont. Code Ann. § 4623-201 (1985»), and Greenholtzv.lnmates of Neb. Penal & Corr. Complex, 442 U.S. I, II
(979) (explaining that state law requires that parole board "'shall order'" prisoner's
relcase unless it chooses to defer parole for one of four specific reasons (quoting Neb. Rev.
Stat. § 83-1,1l4(2) (1976»).
289. In re Dannenberg, 104 P.3d 783, 795 (Cal. 2005).
290. Compare Hayward v. Marshall, 512 F.3d 536, 542 (9th Cil. 2008) (reaffirming
California statute's creation of a liberty interest), and Sass, 461 F.3d at 1128, with
Dannenberg, 104 P.3d at 794 (describing second degree murder sentences as
"imprisonment/oT life, subject to the possibility of sooner release on parole"). Three years
before Dannenberg, the Ninth Circuit had held that the California statute created an
expectation of release. MeQuillion v. Duncan, 306 F.3d 895, 902 (9th Cil. 2002). This
back-and-forth between the fcderal and state court\ is one of many problems with current
due process doctrine. See Jacob, supra note 269, at 1228-29 (highlighting problems that
lower courts have had understanding interaction of federal and statc law in due process
detenninations) .
291. Sass, 461 F.3d at 1127-28. But even Dannenberg's reading, if controlling,justifies
indefinite detention on the basis of public safely, not desert. See Dannenberg, 104 P.3d at
785-86 (framing question in public safety terms).
292. See supra notes 262-263, 268-273 and accompanying text.

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parole eligible, indetenninately sentenced prisoners are not so classified. 29s This might provide some evidence that Wilkinson applies. Then
again, the amount of process required under Wilkinson is minimal.
B. Apprendi, the Statutory Maximum, and the Enumerated Term
The fonnalist critique of Apprendi focuses in part on Blakely and
Booker's analysis of the statutory maximum sentence,Z94 but while the
Blakely/Booker analysis is highly technical, it is functional, not formal. This
section sets out the two different definitions of the statutory maximum,
what I call the "functional statutory maximum" (the maximum for Apprendi purposes) and the "taxonomic statutory maximum" (the maximum
laid out in a given criminal statute). The functional statutory maximum
is the maximum punishment that can be imposed based on facts the jury
has found. In a binding guidelines system, the functional statutory maximum is the presumptive sentence for a given offense. If a judge imposes
a longer sentence without a jury finding the necessary facts, the resulting
sentence violates the Apprendi right, even if its term is less than the taxonomic statutory maximum. According to the California parole statute,
parole eligible prisoners shall be released at the end of the enumerated
tenn unless the parole board finds facts justitying unsuitability for parole.
That is, release is presumptive after the enumerated tenn. Thus, the
functional statutory maximum sentence in a fifteen-years-to-life sentence
is not life, but fifteen years. Apprendi's protections apply to any facts that
increase punishment beyond that fifteen-year threshold.
I. The Meaning of the Functional Statutory Maximum Sentence. - Blakely
and Booker clarified that punishment, for Apprendi purposes, is defined
functionally. In deciding whether an offender faces an increased maximum penalty, courts must look past legislative labels to analyze how a
statute operates. In a binding system, the presumptive sentence is the
statutory maximum, even where it is less than a taxonomic maximum
sentence.
In Blakely, the Supreme Court defined the statutory maximum as the
presumptive sentence for a given set of facts, not the maximum sentence
defined in the statute under which the offender is charged. Ralph
Blakely kidnapped his estranged wife and pleaded guilty to second degree (nonaggravated) kidnapping, a class B felony.29s Washington State's
293. See generally Fama et al., supra notc 97, at 98, 100 (noting prisoners sentenced
to death or LWOPP automatically classified as Level N). Viewed cynically, however, denial
of parole is, in fact, quite an ordinary incident of punishment, since almost no one serving
a life sentence is granted parole. See supra Part J.D. Thus, there are either gross due
process violations occurring throughout the state, or the ordinary incidents tcst has some
kind of evolving standard of (in)decency built into it. That is, a practice that is widespread
cannot be significant and atypical-just as a practice that most states engage in cannot be
cruel and unusual.
294. See supra note 2.
295. Blakely v. Washington, 542 U.S. 296, 298-99 (2004).

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sentencing statute specified a maximum penalty of 120 months for class B
felonies. 2g6 The state's binding sentencing guidelines, however, provided
a presumptive sentence for nonaggravated kidnapping of forty-nine to
fifty-three months. 297 At sentencing, the judge made his own finding of
fact that Blakely "had acted with 'deliberate cruelty,'" a statutorily enumerated aggravating factor that allowed the judge to impose a sentence
of ninety months. 2gB Although both the presumptive sentence (fiftythree months) and the aggravated sentence (ninety months) were below
the maximum term of 120 months allowed by statute, the Supreme Court
nevertheless vacated the sentence, holding that the defendant was "sentenced to prison for more than three years beyond what the law allowed ... on the basis of a disputed finding that he had acted with 'deliberate cruelty.' "299
This judgment turns on Blakely's functional definition of the statutory maximum, which is different from the maximum the statute's text
authorizes (the taxonomic statutory maximum). Washington's sentencing guidelines were binding; the judge could only sentence Blakely to a
maximum of fifty-three months on the facts to which he pleaded guilty.
The judge was not permitted to impose a ninety-month sentence unless a
jury had found, or Blakely admitted, deliberate cruelty. The functional
statutory maximum in Blakely's case, then, was fifty-three months. "When
a judge inflicts punishment that the jury's verdict alone does not allow,
the jury has not found all the facts 'which the law makes essential to the
punishment' and the judge exceeds his proper authority."300 Pleading
guilty to the presumptive crime is not the same as pleading guilty to the
aggravated version of that crime, even if the taxonomic maximum sentence for the crime the legislature calls kidnapping is greater than either.
Booker used Blakely'S functional analysis in holding the Federal
Sentencing Guidelines unconstitutional. 3D] A jury found Freddie Booker
guilty of possession with intent to distribute at least fifty grams of crack,
an offense for which the binding guidelines sentence was at most twentyone years, ten months. 302 At sentencing, however, the judge found by a
preponderance of the evidence that Booker "possessed an additional 566
grams of crack and that he was guilty of obstructing justice," exposing
him to a sentencing range of thirty years to Iife. 303 Both sentences were
less than the taxonomic maximum in the drug trafficking statute, which
"prescribes a minimum sentence of 10 years in prison and a maximum
296.
297.
298.
299.
300.
301.
Court).
302.
303.

Id. at 303.
Id. at 299.
Id. at 300 (quoting Wash. Rev. Code Ann. § 9.94A.390(2)(h)(iii) (2000)).
Id. at 313.
Id. at 304 (quoting 1 j. Bishop, Criminal Procedure § 87. at 55 (2d ed. 1872).
United States v. Booker, 543 U.S. 220, 232 (2005) (Stevens, j., opinion of the
Id. at 227.
Id.

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sentence of life for that offense."304 But because the guidelines were
binding, and because they required the finding of certain aggravating
facts before an increased guidelines sentence could be imposed, "as in
Blakely, 'the jury's verdict alone does not authorize the sentence. The
judge acquires that authority only upon finding some additional fact.' "305
The maximum punishment authorized by the jury's verdict was the presumptive sentence under the guidelines: twenty-one years, ten months.
This was, in turn, the functional statutory maximum for Apprendi purposes,306 because the guidelines "are mandatory and binding on all
judges."30? Again, the jury right attached to facts that would increase a
binding guidelines sentence, even though the guidelines sentence was
less than the taxonomic statutory maximum. 30s
2. The Functional Statutory Maximum of an Indeterminate Sentence Is the
Enumerated Term. - Confusion over Apprendi's definition of the (functional) statutory maximum means that Apprendi-based parole challenges
get rejected out of hand. Judges fail to look at the operation of the parole statute, note simply that the indeterminate sentence includes the
phrase "to life," and conclude that a parole board cannot increase the
maximum punishment to which a prisoner is subjected. 309 The
304. Id. (citing 21 U.S.C. § 841(b)(I) (A) (iii) (2000».
305. Id. at 235 (citing Blakely, 542 U.S. at 305) ("There is no relevant distinction
between the sentence imposed pursuant to the Washington statutes in Blakely and the
sentences imposed pursuant to the Federal Sentencing Guidelines in these cases.").
306. Id.
307. Id. at 233.
308. Critics have derided Blakely's definition as "not tied to colloquial meaning,
legislative intent, or traditional usage of the tenn." Reitz, supra notc 3, at 1093; see also id.
at 1090-92 (noting that overwhelming majority of lower courts before Blakely held that
Apprendi did not apply to guidelines sentences below statutory maximum).
309. See, e.g.• In re Dannenberg, 104 P.3d 783, 804 (Cal. 2005) ("[T]he
indeterminate sentence is in legal effect a sentence for the maximum term, subject only to
the ameliorative power of the parole authority to set a lesser term." (internal quotation
marks and citations omitted». A number of trial court" in the Ninth Circuit have rejected
the invitation to apply Apprendi to parole suitability. See, e.g., Hawks v. Kane, No. C 0502853 JSW, 2006 U.S. Dist. LEXIS 86335, at *15 n.5 (N.D. Cal. Nov. 21, 2006) (noting
defendant's "maximum sentence is life," and that "[b]y determining whether or not to
grant parole, the Board is not increasing his penalty beyond the statutory maximum");
McCauley v. Brown, No. C 05-1817 SI, 2006 U.S. Dist. LEXIS 79040. at *23 (N.D. Cal. Oct.
23, 2006) ("Apprendi [is not] implicated by a parole board's decision whether to release
him before th[e] maximum sentence has been served."); Bibbs v. Kane, No. C 05-04024
ISW, 2006 U.S. Dist. LEXIS 73659, at *14 (N.D. Cal. Sept. 27, 2006) ("By detennining
whether or not to grant parole, the Board is not increasing his penalty beyond the statutory
maximum."); Brumett v. Kane, No. C 04-05423 JSW, 2006 U.S. Dist. LEXIS 73661, at *16
(N.D. Cal. Sept. 27, 2006) ("By determining whether or not to grant parole, the Board is
not increasing his penalty beyond the statutory maximum. Apprendi and Blakely are
inapposite to Petitioner's challenge to the Board's parole determination."); cf. Diaz v.
Curry, No. C 06-0586 CRB. 2007 U.S. Disl. LEXIS 53166, at *23-*24 n.2 (N.D. Cal.July 10,
2007) ("Even assuming [the Apprendi line is] pertinent in the parole context, the BPT
[Board of Prison Terms] ... merely characterized the commitment offense based on facts
already admitted by the defendant."). A case from the First Circuit also rejected an

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California Supreme Court has itself characterized the maximum of an
indeterminate sentence as life, "subject to the possibility of sooner release
on parole."310
But the statutory maximum punishment for Apprendi purposes is the
functional statutory maximum, not the taxonomic statutory maximum.
Under the California parole statute, release into parole is presumptive. 3JI
A parole board has to provide reasons for denying suitability (and extending a sentence) after a prisoner has served his enumerated term of
years. 312 This evidence takes the form of "aggravating facts beyond the minimum elements of that offense."313 Absent any threat to public safety, the
board "shall set a release date."314 Thus, the functional statutory maximum in a fifteen-years-to-life sentence is fifteen years. 315 Only if the parole board were preauthorized to deny parole without finding any additional facts would the functional statutory maximum be life.
This interpretation runs counter to some of the language in Justice
Scalia's Apprendi concurrence, where he states that a prisoner getting released into parole has gotten "less than" a full sentence. 3J6 His language
suggests that the maximum sentence in an indeterminate X-years-to-life
sentence would be life, and dlat the "tenderhearted" act of being granted
parole is not something to which a prisoner has a right:
Will there be disparities? Of course. But the criminal will never
get more punishment than he bargained for when he did the
.1pprendi application to parole, but there the offender was convicted of first degree murder
"by extreme atrocity or cruelty" by the jury. Obershaw v. Lanman, 453 F.3d 56, 57 (1st Cir.
2006).
310. Dannenbe7g, 104 P.3d at 794.
311. Cal. Penal Code § 3041 (a) (West 2008) (Slating that parole board "shall normally
set a parole release date" during parolee's first hearing). This is the essential difference
bcnveen a due process analysis and Apprendi statutory maximum analysis. Due process
analysis says a prisoner has no right to release and the state need not give it to him.
Apprendi analysis, on the other hand, starts from the opposite end: The state is entitled
only to the punishment authorized by the jury and cannot subsequently increase it. Thus,
the maximum penalty in each is different, because the initial allocation is different (the
Coase Theorem be damned).
312. See Danne7lbe7g, 104 P.3d at 803 n.16; see also supra notes 101-102 and
accompanying text. Note that suitability hearings generally take place a year before the
enumerated term is up (less good time credits), but for simplicity, I have used round
numbers.
313. Danne7lberg, 104 P.3d at 803 n.16.
314. Cal. Penal Code § 3041 (b) (West 2000 & Supp. 2008).
315. Indeed, a functional analysis of determinate sentences might engender Apprendi
protections for disciplinary infractions leading to the loss of good time credits. Given that
good time credits are presumptively given in most states, the presumptive release date of a
detenninate sentence is actually the tenn of years minus good time credits. Disciplinary
infractions leading to the revocation of good time credits increase the functional statutory
maximum sentence, even though the taxonomic "pronounced" sentence remains
unchanged.
316. See Apprendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring)
(arguing that felon should "thank the mercy of a tenderhearted parole commission if he is
let out inordinately early").

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crime, and his guilt of the crime (and hence the length of the
sentence to which he is exposed) will be determined beyond a
reasonable doubt by the unanimous vote of 12 of his fellow
citizens. 317
In addition to making assumptions about the way a state's parole system operates,318 Justice Scalia's argument rests on an assumption that the
key interest Apprendi vindicates is notice. If this is true, then, indeed, a
criminal already knows he could do life for murder. But Blakely had constructive knowledge that he could do 120 months-the taxonomic maximum-for kidnapping, and his ninety-month sentence was vacated. The
judge could have sentenced Charles Apprendi to consecutive sentences
based on his guilty plea alone and put him in prison for a total of twenty
years, but instead he found aggravating facts and sentenced Apprendi to
twelve. 31g The taxonomic upper limit of the sentencing range, in other
words, has never been the same as the functional statutory maximum for
Apprendi purposes, nor has notice been Apprendi's sole concern. 320 Instead, in each of the above cases, the Supreme Court has made clear that
a defendant faces only the presumptive sentence upon a verdict (or plea)
of guilty, because only the jury can find facts which punish him more. 321
Under the current statutory regime in California, commitment offense parole denials operate as sentence enhancements for "heinousness." The parole board tacks on incarceration for stigmatic reasons re317. Id.
318. The parole system described in Justice Scalia's statement would have no
expectation of parole, no standards for parole suitability, and no requirements that facts
beyond the minimum for conviction be found. This does not describe California's parole
system-the board is required to have reasons for denying parole, it must issue a written
statement to the inmate setting forth the reasons or reasons for denial, Cal. Penal Code
§ 3041.5(b) (2) (West 2000), and these reasons must go beyond the minimum facts
necessary for conviction. In other words, California's indeterminate sentences contain
within them binding, presumptive sentences, and a defendant does not have notice that he
will selVe more than the enumerated term based on his commitment offense. That is
sufficient to take parole suitability out of the realm of a random, tenderhearted action and
into "Apprendi-Iand." Ring v. Arizona. 536 U.S. 584. 613 (2002) (Scalia,.J., concurring).
319. Apprendi, 530 U.S. at 470-71.
320. See, e.g., infra note 391 and accompanying text (explaining that degree of
culpability in murder statute is among concerns Apprendi vindicates).
321. 1 note also that Justice Scalia's interpretation conflates stigmatic incarceration
(punishment) with incapacitative or rehabilitative punishment (public safety), two issues
Apprendi was at pains to distinguish. See supra Part ILB.l. Confinement is not sufficient to
define punishment (e.g., civil commitment), and arguably not necessary either (e.g.,
shaming punishments such as wearing an "I am a drunk driver" sign in public). See, e.g.,
United States v. Gementera. 379 F.3d 596, 598, 606 (9th Cir. 2004) (upholding supervised
release condition requiring convicted mail thief to wear signboard stating, "I stole mail.
This is my punishment," as part of "a comprehensive set of provisions that expose the
defendant to social disapprobation"). An offender might, indeed, be kept in prison for life
under an indeterminate sentence, but only because he poses a threat to public safety, not
because he is being punished for life. Nevertheless, Justice Scalia has recently maintained
that time served is all that matters, and that Apprendi's protections might cover
punishments that are less stigmatic but result in more time served. See supra note 234.

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lated to the commission of the crime. After Apprendi, however, a judge
cannot impose a two-year sentence enhancement for the use of a firearm
during the course of a murder without a jury finding that fact 322-even
though a fifteen-years-to-life sentence and a seventeen-years-to-life sentence both have a taxonomic maximum term oflife. 323 Similarly, ajudge
cannot change a fifteen-years-to-life second degree murder sentence to a
sixteen-years-to-life sentence based on her own finding of "heinousness,"
not only because there is no statutory authorization for the enhancement, but also because a sixteen-years-to-life sentence is a more stigmatic
punishment than one of fifteen years to life. Only a jury can make the
factual findings justifying these enhancements-no nonjury body,
whether judge or parole board, may.324
3. Avoiding Apprendi Through Changing Parole; ar, VVhy Does This Even
Matter? - Does reconciling the due process parole line with the Apprendi
line depend on the exact statutes at play in California? To what extent, if
any, can a state avoid Apprendi scrutiny by changing its parole statutes and
guidelines-say, by removing the presumption of parole release, removing the requirement that there be any reasons for unsuitability, and removing any enumerated unsuitability factors? As Justice O'Connor argued in her Apprendi dissent, if New Jersey could change its statute to
make "precisely the same differences in punishment turn on precisely the
same facts, and can remove the assessment of those facts from the jury ...
it is impossible to say that the Fifth, Sixth, and Fourteenth Amendments
require the Court's rule."325
322. See Cunningham v. California. 549 U.S. 270, 280 (2007) ("[S]tatutory
enhancements must be charged in the indictment, and the underlying facts must be
proved to the jury beyond a reasonable doubt."),
323. Cal. Penal Code § 1170.1(e) (West 2004) ("All enhancements shall be alleged in
the accusatory pleading and either admitted by the defendant in open court or found to
be true by the trier of fact.").
324. Of course, unsuitable life sentences are not instantly converted to first degree
punishment; it takes a series of denials to get there. To argue that Apprendi is not
implicated only because the second degree conviction gets transformed into a first degree
punishment incrementally-rather than all at once-values fonn over function, an
approach Apprendi rejects.
325. Apprendi v. New Jersey, 530 U.S. 466,543 (2000) (O'Connor,]., dissenting); sec
also Bd. of Pardons v. Allen, 482 U.S. 369, 381-85 (1987) (O'Connor,]., dissenting)
(arguing that broadly granted discretion "belies any reasonable claim" to entitlement to
parole). Justice Scalia joined Justice O'Connor's Allen dissent, in which she argued that
the Montana parole statute did not give rise to a protected liberty interest because the state
had not acted "to limit meaningfully the discretion of the decisionmakers." Id. at 382. A
statute limited a parole board's discretion only if it constrained the relevant
decisionmakers with "particularized standards or criteria." ld. (internal citations and
quotation marks omitted). If a statute is so "broadly framed" as to "essentially leave the
decision whether or not to grant release on parole to the discretion of the Board, .. the
statute simply fails to create a legitimate entitlement to release," Id. at 384. In other
words, penalties and privileges need to be tightly bound to individual facts, which means
that the real difference between parole release and sentencing is the absence of particular
terms associated with particular facts. (It follows from this that, since the Nebraska statute

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Kevin Reitz has observed that there are two ways of responding to the
Apprendi jury right: the "approach" or "B1akelyization" option; and the
"avoidance" or "Bookerization" option. 326 Polities choosing to approach
Apprendi, for example, require jury determination of aggravating sentencing factors. 327 Avoidance is a far more popular approach, however, exploiting a "mile wide" hole in the Apprendi line of Sixth Amendment jurisprudence. s28 As in Booker, an avoiding polity need only make binding
guidelines advisory. S29 After making the guidelines advisory, the taxonomic and functional statutory maxima are the same, so a jury need not
find any facts a judge relies on. Without the mandatory provisions, the
guidelines "fall[] outside the scope of Apprendi's requirement."33o In
other words, a federal judge can and does find facts in imposing
sentences, but only because no particular fact is required. 33 1
But while a state might choose to enact any number of statutes and
regulations, it is unclear why it would choose to employ a completely ungoverned parole system. States issue parole standards and regulations because they serve purposes other than compliance with court decisions. If
a state really wanted the ability to punish offenders more severely, it
could simply eliminate indeterminate sentences and move towards determinate sentences of incredible duration-say, ninety years per offense. It
would not need to take the long way there, increasing punishment
through parole. So while it is possible a state could make a punitive,
wholly discretionary version of parole, it would be much easier for states
simply to dispense with indeterminate sentencing entirely. In other
words, a state could certainly make these changes, but it is a mistake to
think of them as somehow a trivial or obvious response. 332
in Greenholtz also failed to offer particularized standards, Greenholtz was an "aberration and
should be reexamined and limited strictly to its facts." Id. at 385.)
326. Reitz, supra note 3, at 1108-09, 1114.
327. Id. at 1109.
328. Id. at 1113.
329. United States v. Booker, 543 U.S. 220, 259 (2005) (Breyer,]., opinion of the
Court).
330. Id.
331. Exactly how advisory the federal guidelines are is a matter that the Supreme
Court is tcasing out in a series of cases. Rita v. United States held that a circuit may establish
a presumption of reasonableness to a within~guideJines sentence. 127 S. Ct. 2456, 2462
(2007). Gall v. United Slales held that circuit courts must review all sentences under a
deferential abuse of discretion standard "whether inside, just outside, or significantly
outside the Guidelines range." 128 S. Ct. 586, 591 (2007); see also Kimbrough v. United
States, 128 S. Ct. 558, 564 (2007) ("[U]nder Booker, the cocaine Guidelines ... are advisory
only, and ... the Court of Appeals erred in holding the crack/powder disparity effectively
mandatory."): cf. Spears v. United States, 129 S. Ct. 840, 843 (2009) (allowing district
courts to adopt and apply "replacement ratios" instead of the 100:1 crack/powder cocaine
ratio from Guidelines).
332. Nor, frankly, is the prospect of a legislative or regulatory reaction to a court
ruling strictly a problem with Apprendi: Governments are perpetually adjusting laws and
regulations in response to judicial opinions. I would also note that part of the problem is
that the Eighth Amendment has become a practical nullity, applying only to prison

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There might also be some due process limits to a state's choices after
all. Current cases protect the imposition of the sentence (Apprendi) but
not its result, and they protect the result of parole release (Morrissey) but
not its imposition. 333 Ultimately, it seems absurd to hold that due process
obtains during the sentencing process, which governs the prospective duration of restrained liberty, but that it is no restraint on the actual length
of time those in prison will spend there. Nor does it make sense to hold
that a parolee enjoys due process protections once she has been conditionally released, but that she has no protections during the hearing that
determines whether or when she will be granted that conditional release. 334 An offender cannot have inherent due process interests in both
of these stages but not in parole suitability itself'''
IV.

THE STANDARD OF PROOF AND THE DEFINITION OF AN OFFENSE

Having discussed which bodies may find facts in Part Il, and what
kinds of punishment they may impose on the basis of those facts in Part
Ill, I now arrive at Part IV and the final part of the analysis: what standard of proof governs factfinding. The primary conflict between the
Apprendi line and the due process line is, again, that the former is functional, while the latter remains entirely taxonomic. Apprendi, contrary to
its reputation, relies on a functional definition of "crime."336 Apprendi
looks to what statutes do, not what they say they do, in order to determine
whether a given fact is an element of a crime. Under the existing cases
governing parole board review, however, courts do not need to look at
conditions and the death penalty. If there were limits to what a legislature could decide
about punishment-that is, if the Eighth Amendment were read alongside the prohibition
on bills of attainder as a kind of cQuntennajoritalian limit on punishment-then any
"problem" Apprendi created could be solved by resorting to the Eighth Amendment.
333. Perhaps prison is the common factor here, a singularity from which no due
process can enter or exit. "What, then, happens if an incarcerated prisoner faces a new
charge and get') a new trial for a different crime? The pTisoner's due process rights are
surely not lessened at his new trial just because he is already in prison-but how do we
then draw the line?
334. Greenhollz held that "parole ulease and parole rl!vocalion are quite different,"
without explaining why the rights attaching to each are different. Greenholtz v. Inmates of
Neb. Penal & Corr. Complex. 442 U.S. 1. 9 (1979). Parolees can certainly form the
"enduring attachments of nonnal life," and unreleased inmates are "subject to all of the
necessary restraints that inhere in a prison." ld. (internal quotation marks omitted). But
why pull up the ladder once someone has been gralucd release, without acknowledging
that the way she was released was through the very process-a suitability hearing-to which
no due process rights attach?
335. Wilkinson v. Austin, 545 U.S. 209 (2005), might support this proposal. It is
obvious that anyone sentenced to prison-as respondents were in Wilkinson, id. at 218has had his liberty restrained. But Wilkinson held that parole eligibility cannot be limited
"atypical[ly] and significant[ly]." Id. at 223. (Or is that arbitrarily and capriciously? See
supra notes 273, 285.)
336. In fact, A.pprendi's standard of proof holding is itself a reaction against the
formalist practice of stashing the clements of real crimes in sentence enhancements. See
discussion infra Part N.B.

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what the parole board is doing. They need only see that a parole board is
doing it. Once the parole board is involved, it needs only to find facts by
"some evidence."
A. Parole's Standard of Proof
Parole board findings of fact are essentially unconstrained. Part
1V.A.I explains that the parole board need only find "some evidence" of
the facts justitying a finding of unsuitability. California state courts reviewing parole habeas petitions may not independently review these facts,
and federal courts are doubly constrained by "some evidence" review and
deference due to state courts under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).337 Only if there is no evidence of
unsuitability will a court overturn a parole board. Part 1V.A.2 shows how
the "some evidence" standard is used in unsuitable life sentence cases to
render review practically impossible.
1. Parole Suitability Is Reviewed for "Sante Evidence. " - While state and
federal cases have held that the parole board's suitability decisions must
be supported by "some evidence,"33B the Supreme Court has never applied the "some evidence" test to a parole suitability case. 339 The "some
evidence" standard comes from the prison discipline case Superintendent
v. Hill, which involved the revocation of good time credits for an inprison disciplinary infraction. 340 The policy concerns unique to prison
discipline weigh heavily in favor ofjudicial restraint, especially "the legitimate institutional needs of assuring the safety of inmates and prisoners,
avoiding burdensome administrative requirements that might be susceptible to manipulation, and preserving the disciplinary process as a means
337. 28 U.S.C. § 2254 (2006).
338. See. e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006)
(finding requisite "some evidence" to support parole board determination); d. In re
Rosenkrantz, 59 P.3d 174, 211-12 (Cal. 2002) (finding Governor's parole decision subject
to same cOl1slitutional limitations as those of parole board, including requirement that
"the faclUal basis of such a decision is supported by some evidence in the record that was
before the Board").

339. Because the Supreme Court has not spoken directly to this question, Ninth
Circuit judges have argued about the exact contours of the "some evidence" standard, and
whether it applies in the parole context at all. One dissenter has argued that a parole
board determination must be both "supported by 'some evidence' and not 'otherwise
arbitrary.'" Sass. 461 F.3d at 1133 (Reinhardt,]., dissenting) (emphasis omitted). On the
other end of the spectrum is an argument that looking for "some evidence" to support
denial of parole gives faD lillie deference to state parole boards, not too much. Irons v.
Carey. 506 F.3d 951. 956 (9th Cir. 2007) (Kleinfeld,]., dissenting from denial of rehearing
en banc) ("States are entitled to deny parole and require prisoners to serve their full
sentences less 'good time,' even without 'some evidence' beyond the crimes for which the
sentences were imposed." (emphasis added)); see also Boss v. Quarterman, No. 07-50448,
2008 WL 5194600. at *2 (5th Cir. Dec. 12,2008) (holding Superintendent v. Hill. 472 U.S.
445 (1985). does not govern parole release review).
340. 472 U.S. at 447. I-lill's credits were revoked even though no onc saw the assault
and the victim provided written testimony that Hill and the other charged inmates had not
caused his injury. Id. at 447-48.

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of rehabilitation."34l While an inmate has a "strong interest in assuring
that the loss of good time credits is not imposed arbitrarily" because "the
loss of such credits threatens his prospective freedom from confinement
by extending the length of imprisonment,"342 this liberty interest has to
be "accommodated in the distinctive setting of a prison, where disciplinary proceedings 'take place in a closed, tightly controlled environment
peopled by those who have chosen to violate the criminal law and who
have been lawfully incarcerated for doing so.' "343 Thus, "a modicum of
evidence" supporting the revocation of good time credits is sufficient to
"prevent arbitrary deprivations without threatening institutional interests
or imposing undue administrative burdens."344 This standard does not
"require examination of the entire record, independent assessment of
the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board."3·"
2. Applying "Some }<,vidence" to Unsuitable Life Sentences. - The policy
considerations driving the due process analysis of prison disciplinary proceedings map poorly, if at all, onto a parole board's finding of commitment offense unsuitability. None of the institutional concerns is the
same. First, unsuitable life sentences have nothing to do with in-prison
discipline. The only prisoners for whom the commitment offense is dispositive are those who have already demonstrated a pattern of good behavior. Their parole is denied despite good behavior, not because of it. 346
Second, the essence of prison disciplinary proceedings is that they
"take place in a highly charged atmosphere" where "prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances."347 There is no exigency in a parole
hearing, particularly if the facts before the parole board concern the
commitment offense. The parole board has notice of impending suitability hearings for more than a decade (and sometimes more than two decades). There is no recent event requiring a rapid response and no
"highly charged atmosphere"34s arising from in-prison violence.
Third, whereas facts in a disciplinary hearing come from "a closed,
tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing
SO,"349 commitment offense facts come from court transcripts. Hill's concerns about witness reliability and intimidation in prison do not apply to
341. Id. at 454-55.
342. Id. at 454 (internal citations omitted). For an exploration of why the revocation
of good time credits might nevertheless present an Apprendi problem, see supra note 315.
343. Hill, 472 U.S. at 454 (internal citations omitted).
344. Jd. at 455.
345. Jd. at 455-56.
346. See text accompanying note 251.
347. Hill, 472 U.S. at 456.
348. Id.
349. Id. at 454 (internal citations and quotation marks omitted).

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criminal trials, and the trial has procedural guarantees (such as crossexamination) that improve the accuracy of such testimony.35o Ironically,
it is these procedural protections that underlie judicial deference to parole board decisions in the first place. 35 ! Finally, unsuitable life
sentences have nothing to do with the safety of inmates, add no administrative burdens, and, in fact, undercut the prison discipline process by
demonstrating to inmates that good behavior is necessary but not sufficient to gain release.
The attenuated standards by which parole decisions are reviewed exacerbates the weakness of the standard of proof.352 While the prisoners
denied good time credits in Hill were granted judicial review of prison
disciplinary proceedings as a statutory right,353 California grants no such
right. The only state judicial review in California is habeas review, which
itself applies the "some evidence" standard and precludes any independent weighing of the evidence. 354 Federal courts, in tum, also review for
"some evidence,"355 and are further constrained in their ability to review
facts by AEDPA. 356 This leads to the very real possibility that there is no
350. A parole board also has a more tenuous relationship to the facts than the judge,
who has at least observed the trial (or the plea allocution) and seen the evidence herself.
351. See supra notc 260.
352. The power to review parole decisions is crucial in making sure that discretion is
exercised sensibly. Steven L. Chanenson, Guidance from Above and Beyond, 58 Stan L.
Rev. 175, 178, 188-89 (2005) ("[A]ppellate courts playa vital role in [limiting discretion]
as part of the proper functioning of a sensible, guided sentencing system."); see also
Berman & Bibas, supra notc 200, at 43-44 (noting that review is onc mechanism by which
discretion can be channeled).
353. Hill, 472 U.S. at 459-60 (Stevens,.J., dissenting) ("Massachusetts' law, wholly
apart from the Federal Constitution, provides judicial review for the correction of errors
'in proceedings which ... are not otherwise reviewable by motion or appeal. '" (internal
citations omitted)).
354. See supra notes 129-132 and accompanying text.
355. See supra note 338.
356. AEDPA limits the review of habeas petitions "on behalf of a person in custody
pursuant to the judgment of a State court." 28 U.S.C. § 2254(d) (2006). Federal courts
often interpret this phrase to apply to parole board decisions, since the prisoner is in
custody pursuant to his conviction for his commitment offense. See, e.g., Sass v. Cal. Ed. of
Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006). Under AEDPA, federal courts may
only grant relief "with respect to any claim that was adjudicated on the merits in State court
proceedings" if the state court decision was "contrary to, or involved unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States" or if the decision was "based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In
a future paper, I will argue that none of the comity and finality concerns underlying
AEDPA is in operation here. See generally, e.g., Williams v. Taylor, 529 U.S. 362, 381
(2000) (citing Teague v. Laue, 489 U.S. 288, 301 (1989» (discussing habeas concerns
developed in case law and codified by AEDPA). The parole board of the state of California
is not a coequal body with a federal court, a parole board hearing docs not have the
procedural safeguards or factfinding accuracy of a state trial court, and state habeas review
makes no findings on the merits. A state court has plenary jurisdiction to reach
constitutional issues; a parole board does not. For more on this subject, sec Nancy J. King
& Suzanna Sherry, Habeas Corpus and State Sentencing Reform: A Story of Unintended

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meaningful judicial review of unsuitable life sentences. 357 Thus, not only
is the jury's verdict not binding on the parole process itself, there is no
real way to redress the parole board's subversion of the jury finding via
the courts. The "some evidence" standard's application to parole should
be reconsidered independently of the Apprendi argument raised in this
Article.
While it makes no sense to give a parole board's finding of commitment offense facts any deference, a parole board might, indeed, deserve
deference for the facts it finds about other suitability factors besides the
commitment offense, such as punishing in-prison misconduct (as in Hill)
or providing a forward-looking assessment of a prisoner's public safety
threat at the point of release. The parole board can and should find facts
about in-prison discipline and the prisoner's current psychiatric and behavioral profile. These facts need not be found beyond a reasonable
doubt, for the institutional interests identified in Hill. Limiting a parole
board's discretion, by removing certain facts from its consideration,
might ultimately be the best way to save it.
B. Apprendi's Requirement of Proof Beyond a Reasonable Doubt
Apprendi requires both that the jury find facts and that it find
those facts beyond a reasonable doubt. Since both of these parts
of the rule involve the jury and touch on similar interests,358 they
are often conDated,359 but the requirement that facts be proven
Consequences, 58 Duke LJ. I, 19 (2008) (stating that nearly one in five noncapital habeas
petitions filed in federal district courts challenged "the constitutionality of a decision by
state corrections or parole officials regarding the administration of the prisoner's
sentence" (citing Nancy J. King et al., Final Technical Report: Habeas Litigation in U.S.
District Courts 26 (2007), available at http://ssrn.com/abstract=999389 (on file with the
Cotumbia Law Review))).
357. State courts have, however, granted relief on the basis that there was not "some
evidence" supporting a finding that a murder was heinous, atrocious, or cruel. See, e.g., In
re Elkins, 50 Cal. Rptr. 3d 503, 523 (Ct. App. 2006) ("The Governor's decision reversing
the Board's grant of parole on the basis of the tacts of the offense lacks 'some evidence'
that granting parole posed 'an unreasonable risk of danger to society.''').
358. Both touch on due process: The procedure due a convicted offender involves
bolh a jury finding and a finding beyond a reasonable doubt. Both requirements also touch
on separation of powers questions: Can the state usurp the jury's power as the final
bulwark against the deprivation of liberty, or, alternatively, can the judiciary impinge upon
the legislative power to structure criminal laws?
359. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000). In Appendi, the
Court found that:
At stake in this case are constitutional protections of surpassing importance: the
proscription of any deprivation of liberty without "due process of law," and the
guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury." Taken together, these rights
indisputably entitle a criminal defendant to "a jury determination that [he] is
guilty of every element of the crime with which he is charged, beyond a
reasonable doubL"

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beyond a reasonable doubt is a distinct part of the Apprendi
rule. 350
Apprendi's holding about the standard of proof once again uses a
functional method to define crimes. Crimes are made up of facts justifying punishment, whether or not the legislature labels these facts as elements, sentencing enhancements, or anything else. AIl of these facts
must be proven beyond a reasonable doubt because of the stigma and
liberty deprivation at stake, and because crimes have historically required
this standard of proof.3 5l
1. Apprendi Defines Crimes Functionally. - The beyond a reasonable
doubt standard of proof is "a profound judgment about the way in which
law should be enforced and justice administered."352 The standard of
proof for a given fact depends on whether that fact is an element of a
crime: The state has borne the burden of "a higher degree of persuasion
in criminal cases" since "ancient times," even though "its crystallization
into the fonnula 'beyond a reasonable doubt' seems to have occurred as
late as 1798."353 The real issue here is what makes a fact an element. Is
an element an element because the legislature calls it an element, or is an
element an element because it is the functional constituent of a crime?
Again, I call the statutory approach taxonomic and the operational approach functiona],354 There are potential separation of powers issues at
stake in both approaches: Taxonomist~ argue that the judiciary infringes
on the legislature's power to define crimes by ignoring statutory text,
while functionalists argue that the jury has the right to find facts about
crimes, and the legislature may not "manipulate the prosecutor's burden
of proof'35s by putting elements elsewhere in the code.
Apprendi represents the triumph of the functional approach, ushering in an era where operant facts-"whether the statute calls them eleId. (alteration in original) (internal citations omitted). But, of course, affirmative defenses
and other facts a jury finds are not found beyond a reasonable doubt.
360. Justice Stevens wrote in Apprendi that: "[I]t is unconstitutional for a legislature to
remove from the jury the assessment of facts that increase the prescribed range of penalties
to which a climinal defendant is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt." Id. at 489 (alteration in original)
(inlernal quotation marks omitted) (quoting Jones v. United States, 526 U.S. 227, 252-53
(1999) (Stevens,]., concurring)).
361. Of course, this history is contested, and the beyond a reasonable doubt standard
applied only to taxonomic crimes, not functional ones. Then again, "[a]ny possible
distinction between an 'element' of a felony offense and a 'sentencing factor' was
unknown to the practice or criminal indictment, trial by jury, and judgment by court as it
existed during the years surrounding OUf Nation's founding." [d. at 478 (intcITIal citations
omitted).

362. [d. (internal quotation marks and citation omitted),
363. [d. (citing In re Winship, 397 U.S. 358, 361 (1970».
361. This division is similar to the methodological disputes over the liberty interest in
parole-that is, whether the statute itself creates the interest, or whether there is an
inhercm liberty interest in release. See discussion supra Part IILA.I.
365. Apprendi, 530 U.S. at 475.

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ments of the offense, sentencing factors, or Mary Jane-must be
found ... beyond a reasonable doubt."366 Under Apprendi, a jury must
find facts that increase punishment, no matter in what section of a state's
code they might be found: "[M] erely because the state legislature"
deems a given fact a sentence enhancement does not mean the fact "is
not an essential element of the offense."367 "[T]he relevant inquiry is
one not of form, but of effect."368 Apprendi eliminated the distinction
between elements of an offense and sentencing factors, "repeatedly" instructing "that the [legislature's] characterization of a fact or circumstance as an 'element' or a 'sentencing factor' is not determinative of the
question 'who decides,' judge or jUly."369
Apprendi sought to restrain state legislatures from defining elements
of Climes in the offense statute and authorizing punishments in sentence
enhancements. 37o In Apprendi, for example, the New Jersey legislature
constructed a statutory scheme that "allow[ed] ajury to convict a defendant of a second-degree offense ... [and] after a subsequent and separate proceeding ... allow[ed] ajudge to impose punishment identical to
that New Jersey provides for crimes of the first degree."371 This both circumvented the jury power and allowed the state to punish offenders for
crimes it did not prove beyond a reasonable doubt. Because the fact of
Charles Apprendi's racial animus enabled "an increase beyond the maximum authorized statutory sentence, it [was] the functional equivalent of
an element of a greater offense than the one covered by the jury's guilty
verdict."372 Whether Apprendi treated the sentencing enhancement disease with an even more formalist cure is a matter of continuing debate.

366. Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring). These facts
have to be related to punishment-that is, stigmatic loss of liberty. As the AptJTendi Court
noted:
[f a defendant faces punishment beyond that provided by statute when an offense
is committed under certain circumstances but not others, it is obvious that both
the loss of liberty and the stigma attaching to the oJTcnse are heighu'ned; it
necessarily follows that the defendant should not-at the mornen t the State is put
to proof of those circumstances-be deprived of protections that have, until that
point, unquestionably attached.

530 U.S. at 484.
367. Apprendi, 530 U.S. at 495.
368. Id. at 494.
369. Ring, 536 U.s. at 604-05 (citing Appmuli, 530 U.S. at ·192, ·194, 495, 501). Of
course, this passage conflates the standard of proof with the body that decides, assuming
that a judge necessarily uses a preponderance standard of proof and a jury necessarily uses
a beyond a reasonable doubt standard.
370. See United States v. Booker, 543 U.S. 220, 236 (2005) (Stevens,.J., opinion of the
Court) ("As the enhancements became greater, the jury's finding of the underlying crime
became less significant. ").
371. Apprendi, 530 U.S. at 491.
372. Id. at 494 0.19.

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Apprendi's standard of proof holding relies primarily on In re
Winship,373 which itself takes a functionalist approach. 374 Although
Apprendi (and earlier cases) applied Winship to criminal cases, Winship
himself was a juvenile,375 charged not with a crime, but rather with "an
act which would constitute a crime if committed by an adult."376 Winship
did not face a prison term but was sentenced indeterminately to a training school for an eighteen-month term "subject to annual extensions ...
until his 18th birthday."377 The New York Court of Appeals used a taxonomic approach in upholding the preponderance of evidence standard
used to deem him a delinquent: Because a delinquency adjudication was
not (taxonomically) a conviction, delinquency status was not (taxonomically) a crime, and the proceedings were not (taxonomically) Climinal,378
the beyond a reasonable doubt standard of proof did not apply.
The Supreme Court reversed,379 looking beyond "the civil label-ofconvenience" to the functional effect of the proceeding. 38o Despite the
rehabilitative interests of the juvenile system,381 the state could not subject "the child to the stigma of a finding that he violated a criminal law
and to the possibility of institutional confinement on proof insufficient to
convict him were he an adult."382 The Winship Court thus functionally
analogized Winship's behavior-and his juvenile charge-to a crime, and
held that Winship's due process rights were those that attached to (taxonomic) criminal proceedings.

373. '" [T] he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to consdtute the crime with which
he is charged.''' Id. at 477 (alteration in original) (quoting In re Winship, 397 U.S. 358,
364 (1970».
374. 397 U.S. at 365-66 ("[C]ivillabels and good intentions do not (hemselves obviate
the need for criminal due process safeguards in juvenile court" ...."). Winship used a
functional analysis to consider the civil juvenile proceeding criminal; Apprendi used
another functional step to apply Winship's holding to sentence enhancements.
375. Id. at 360.
376. Id. at 359. Winship stole $112, an act, which "if done by an adult, would
constitute the crime or crimes of Larceny." Id. at 360.
377. Id. at 360.
378. Id. at 365.
379. [d. at 361.
380. Id. at 365-66 (internal quotation marks omitted) (explaining that criminal due
process safeguards may be necessary in juvenile courts, even if adjudication is called civil,
where child faces loss of liberty and the stigma of being adjudicated a delinquent).
381. The New York court had "attempted to justify the preponderance standard on
the related ground that juvenile proceedings are designed 'not to punish, but to save the
child.'" Id. (internal citations omitted). This illustrates, again, that the meaning of
punishment is implicit in the Apprendi line. The Kansas Supreme Court recently held that
juveniles have a right to trial by jury, since juvenile sentences are no longer rehabilitative.
See In re L.M., 186 P.3d 164, 170 (Kan. 2008).
382. Winship, 397 U.S. at 367. For a discussion of the use of similar language in
Apprendi, see supra notes 179-183 and accompanying text.

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The Supreme Court teased out Winship's boundaries in a series of
cases beginning with Mullaney v. Wilbur'83 and ending with Jones v. United
States, the case that first formulated Apprendi's standard of proof holding. 384 By the time Apprendi adopted jones's formulation of the standard
of proof the Court had completely assimilated a rule from a civil case with
an indeterminate sentence (Winship) into a line of criminal cases with
determinate sentences.
Apprendi is often accused of formalism because its rule can be circumvented by making binding guidelines advisory. Although accusations
of formalism against Apprendi are now commonplace, Apprendi itself was a
reaction to a different kind of formalism.'85 Without a functional constraint on the legislature's power to define crimes, a state could, conceivably, cut and paste all elements of climes into the sentencing enhance383. 121 U.S. 68,1 (1975). Mullaney supported the functionalist approach, holding
that the state cannot "circumvent the protections of Winship merely by 'redefin [ing] the
elements that constitute different crimes, characterizing them as factors that bear solely on
the extent of punishment. '" Apprendi v. New Jersey, 530 U.S. 466, 485 (2000) (alteration
in original) (quoting Mullaney, 421 U.S. at 698). Winship's due process protections were
ultimately "concerned with substance, rather than, . ,fonnalism." Mullaney, 421 U.S. at
699.
Patterson v. New York subsequently limited Mullaney to instances where the legislature
created a presumption against the defendant, upholding a New York murder statute
functionally very similar to the Maine law at issue in Mullaney. 432 U.S. 197, 214-15
(1977). Uustice Stevens, a later proponent of functionalism-and Apprendi's authorjoined the Paller-son majority in a 5-3 decision. Id. at 197.)
McMillan v. Pennsylvania, 477 U.S. 79 (1986), was the taxonomists' high-water mark.
upholding a "sentencing factor" that imposed mandatory minimum sentences for
offenders found, by a preponderance of the evidence, to have '''visibly possessed a firearm'
in the course of committing one of the specified felonies." Apprendi, 530 U.S. at 486
(quoting AfcMillan, 477 U.S. at 81-82). Pennsylvania could have chosen to include gun
possession as an element of the specified felonies, but did not. The Court cited Pallerson
for the proposition that "we should hesitate to conclude that due process bars the State
from pursuing its chosen course in the area of defining crimes and prescribing penalties."
McMillan, 477 U.S. at 86. This time, however,Justice Stevens joined the dissent in a 5-4
decision. Id. at 80.
381. 526 U.S. 227, 213 n.6 (1999) ("[A]ny fact (other than prior convictiou) that
increases the maximum penalty for a crime must be charged in an indictment, submitted
to a jUly, and proven beyond a reasonable doubt."). But because the prior cases
"suggest[cdJ rather than establish [ed] this principle," the Jones Court did not so hold. Id.
Instead, after noting the tension in the cases following Winship, id. at 240-43, the majority
chose, as a means of avoiding "serious constitutional questions," id. at 251, to read the
single federal carjacking statute as three separate offenses, id. at 229. Jones also referred to
the factfinding issues in the capital cases Walton v. Arizona, 497 U.S. 639 (1990), overruled
by Ring v. Arizona, 536 U.S. 581 (2002), and Spaziano v. Florida, 168 U.S. 117 (1981), as
raising issues "too significant to be decided without being squarely faced." 526 U.S. at 251.
For a more in-depth discussion of Spaziano, especially Justice Stevens's dissent, sec supra
notes ]70-]74 and accompanying text.
385. Pallerson, which embraced wholly the legislature's taxonomic power to define
crimes, was itself criticized as "indefensibly formalistic" and "a rather simplistic lesson in
statutory draftsmanship," language that today would be associated with AttfJrendi's critics.
Pattersim, 132 U.S. at 221 (Powell, J, dissenting).

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ment section of its code. Only the "formal" finding of guilt for the
stripped-down crime would require proof beyond a reasonable doubt; all
subsequent findings of fact about enhancements-the very facts that determine an offender's ultimate punishment-would require only a preponderance of evidence. Whether this kind of sentence enhancement
formalism is more dangerous than Apprendi's binding guidelines formalism depends on how one models the political pressures that legislatures
are subject to. The majority in Apprendi cited Justice Powell's Patterson
dissent on this key point, arguing that element-to-enhancement relabeling hides true criminal punishments in a way that renders legislators less
accountable:
Our rule ensures that a State is obliged "to make its choices concerning the substantive content of its criminal laws with full
awareness of the consequences, unable to mask substantive policy choices" of exposing all who are convicted to the maximum
sentence it provides. So exposed, "the political check on potentially harsh legislative action is then more likely to operate."3S6
2. Apprendi Functionalism and Unsuitable Life Sentences: Are Parole
Board Unsuitability Facts Elements of Crimes? - Under the functional approach, commitment offense facts used to deny parole fall under
Apprendi's ambit-they are "elements" of "crimes," operating to increase
punishment, even though the legislature has put parole suitability in a
different part of the code. Apprendi emphasizes that elements of a crime
are not those facts a legislature labels as elements; elements are facts
which functionally deprive one of liberty through increased punishment.
"If a State makes an increase in a defendant's authorized punishment
contingent on the finding of a fact, that fact-no matter how the State
labels it-must be found by ajury beyond a reasonable doubt."387 Under
the Apprendi analysis presented in this Article, parole board findings of
fact increase the punishment administered to an offender just as surely as
a judge finding a fact about racial animus, aggravated kidnapping, or any
sentencing enhancement does, and it does so without a state making
clear choices about the substance of its criminal laws. The only argument
that Apprendi does not cover parole board resentencing is one extrinsic to
the Apprendi line itself: that rights at sentencing extend only to the judicial pronouncement of the prospective sentence, not the administration
of the actual sentence itself. This, too, is inconsistent with Apprendi's

386. Appendi, 530 U.S. at 490-91 n.16 (quoting Patterson, 432 U.S. at 228-29 n.13
(Powell,]., dissenting)); see also Patterson, 432 U.S. at 223 (Powell,]., dissenting) (asserting
that allowing legislature "to shift, virtually at will, the burden of persuasion, .. so long as it
is careful not to mention the nonexistence of that factor in the statutory language that
defines the crime," weakens the political pressures necessary to prevent abuse).
387. Ring, 536 U.S. at 602.

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functional approach, since it suggests that in this one area, labels do, in
fact, matter more than functions. 3ss
These limits are the heart of the interests the Apprendi line protects.
In Blakely, Justice Scalia highlighted their effects on notice. Without the
protections of a jury and a high standard of proof,
a defendant, with no warning in either his indictment or plea,
would routinely see his maximum potential sentence balloon
from as little as five years to as much as life imprisonment, based
not on facts proved to his peers beyond a reasonable doubt, but
on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than
got it wrong. 389
Second degree murderers see their punishments balloon under worse circumstances-the parole board is operating at a greater remove from the
trial than the probation officer, and the parole board need only find facts
with a modicum of evidence, not the relative stricture of "more likely
right than wrong."390
Notice is not the only, or even the primary, interest Apprendi protects, however, and parole board resentencing infringes on these interests
as well. Apprendi is ultimately concerned with proportionality of punishment-not just what punishment an offender expects, but what punishment she deserves. Part of the reason the Court scrutinized the NewJersey
sentencing law in Apprendi was that the jury's verdict did not serve to limit
the punishment the judge could impose. This meant that the distinct
degrees of offense the legislature codified in the statute collapsed into a
single, more serious crime. The "scheme ... allows a jury to convict a
defendant of a second-degree offense ... [and] after a subsequent and
separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree . . . ."391
Preserving the degrees of an offense is important not just because it maintains the legislature's power to structure its criminal statutes, but because,
in some absolute sense, the degrees in the statute correspond to the
moral opprobrium attached to particular crimes. Parole board resentencing eradicates any proportionality of punishment. Not only do second degree and first degree murderers serve similar amount, of time for
different degrees of an offense, they do so because a parole board-not a
jury-finds their Cl;mes similarly iniquitous (i.e., heinous, atrocious, or
cruel) .
388. For a stronger argument that Apprendi is not confined to labels like sentencing
phase and guilt phase, but is, instead, just concerned with crime and punishment, see
supra text accompanying notes 224-226.
389. Blakely v. Washington, 542 U.S. 296, 311-12 (200·'1).
390. In Mullaney, Justice Powell described as "intolerable" the idea that "a defendant
can be given a life sentence when the evidence indicates that it is as likely as not that he
deserves a significantly lesser sentence." Mullaney v. Wilbur, 421 U.S. 684, 703 (1975).
391. "4pprendi, 530 U.S. at 491.

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Parole board factfinding thus runs afoul not only of the functional
approach, but of the taxonomic approach as well. The California homicide statute defines killing in a heinous, atrocious, or cruel manner as
one of the taxonomic elements of first degree murder with special circumstances, punishable by LWOPP or death. When the parole board finds
identical facts in a parole eligible murderer's suitability hearing and denies parole on that basis alone, the board has thwarted the structure of
the murder statute. 392
Parole board findings of fact thus have something for both sides to
abhor. Under either a taxonomic or functional standard, the parole
board cannot find heinous, atrocious, or cruel facts about the commitment offense without violating both the letter and the spirit of the law.
Heinous, atrocious, or cruel murders are first degree offenses with special
circumstances punishable by parole ineligible sentences. A second degree murder is necessarily one that is not heinous, atrocious, or cruel and
cannot, of its own accord, foreclose parole. But an unsuitable life sentence is like Jack Nicholson's chicken salad sandwich in Five Easy Pieces: 393
fifteen years to life with the possibility of parole, hold the possibility of
parole.

V.

POLICY CONSIDERATIONS

If commitment offenses were no longer a factor in suitability determinations, the focus of the parole system could shift to inmates' behavior
in prison. Parole boards arc both authorized and ideally situated to assess
an offender's threat to public safety by looking at his disciplinary record,
participation in rehabilitative programs, and mental health. 394 Indeed,
evaluating these factors is closer to the heart of parole, since it both aids
in the administration of prison populations (motivating prisoners to be
well-behaved) and promotes public safety (preparing inmates for their
return to society and evaluating whether they are ready to be released).
The parole board has the institutional competence to make these assessments and is, crucially, examining behavior after the judicial imposition
of the sentence, facts which were obviously unavailable to the jury (or the
judge) at trial.
Eliminating this retrospection in the evaluation of suitability might
reorient the proceedings away from the crime and toward the inmate's
readiness to reenter society. This orientation would emphasize public
safety over desert and create incentives for prisoners to participate in rehabilitative programming, moving the entire system toward release and
reintegration. Foreclosing the possibility of parole, regardless of how
many positive steps an inmate takes while incarcerated, removes a prisoner's incentive both to behave and to treat underlying criminogenic risk
392. This is so even if ineligibility for parole is impermanent (albeit indefinite).
393. Five Easy Pieces (Columbia Pictures 1970).
394. Cal. Code Regs. tit. 15. § 2402(c) (2005).

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factors, ultimately damaging both prison administration and public
safety. Even though a prisoner serving an indeterminate sentence might
never be released, a climate of disorder and violence impedes the progress of the thousands of other inmates who, thanks to determinate sentencing, will be released, no matter what kind of threat they pose to public safety.
A focus on release would also reframe the political discussion about
parole by placing an outer limit on the punishment a given crime deserves, one that is immune to parole board reconsideration. A state
would have to acknowledge that an offender's debt to society cannot perpetually be reassessed; after a while, an offender's debt to society has, in
fact, been paid. Alternatively, if an offender's societal debt is to be reassessed, it should be the jury who does it, working in concert with the
judiciary and legislature, not a body of political appointees, in prison,
whose decision will almost never be scrutinized or stringently reviewed. 395
Shifting the focus toward public safety means that we can start to have
discussions about who is ready to get out, not who deserves to get out.
States would also have an opportunity to improve how they assess an
offender's threat to public safety. California currently screens paroleesmostly those released from determinate sentences into mandatory parole-for twenty-six crime-related factors and assigns them a risk level
based on their potential for recidivism. 396 The screening mechanisms already employed by the state (and nearly 500 other correctional agen395. Onc other option might be to establish a reentry jury for parole suitability.
These juries would hear expert testimony from corrections officials and psychiatrists about
an offender's threat to public safety, and the jury could decide whether an eligible inmate
was, in fact, rcady for parole relca5c. Involving citizens in release decisions would
acknowledge that reentry requires not only an offender willing to rcenter the community,
but a community willing to accept him. The jUl)" as the voice of the community, would
find all relevant fact'i and pass judgment. This time, however, its sentence would be a
positive one announcing that an offender was ready to return. Community
acknowledgement that an offender's debt has been paid would complete the retributive
circle. Such a jury would not be limited in its ability to find all relevant facts, including
ones about the commitment offense.
This proposal embodies what Kevin Reitz calls the "approach" method to Apprendi
compliance (e.g., Kansas's establishing separate jUlies to find all facts triggering sentence
enhancements). Reitz, supra note 3, at llOS; see also supra note 308 (disclLssing critique
of Blake~'V). Many issues would need to be addressed to flesh out the reentry jury proposal,
including what administrative and budgetary resources it would use and whether it would
replace traditional parole board determinations entirely or in part. The loss of parole
board "expertise" itself might be minimal since parole board members are chosen without
any requirements that they possess any particular expertise, and many of them face
political pressure to find prisoners unsuitable. Juries drawn from the population at large
might benefit from not being repeat players. Mter all, criminal (and tort) verdicts pilloried
in public always make sense to the jurors themselves. Of course, ajury has no institutional
obligations to release anyone, and California might find its prisons even more crowded.
Given that so few parole eligible prisoners are released now, however, it is difficult to see
how much more infrequent parole release could get.
396. Petersilia, Parole, supra note 93.

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cies)397 could also be used to determine when a lifer is ready to be released. Arguably, such a practice would provide more reliable indicia of
an offender's threat to public safety than the parole board's judgment. 39B
But perhaps the problem is not with parole itself, but with its implementation, and a lack of Apprendi analysis is not the cure for what ails the
system. As Douglas Berman and Stephanos Bibas have observed, "formalistic constitutional doctrines alone cannot effectively promote jury involvement or prompt sound legislative responses."399 Removing the commitment offense from the parole board's consideration will not solve all
the problems with parole board administration. States do not require
particular qualifications to serve on parole boards. 40o Parole boards are
notoriously arbitrary, even when not considering commitment offenses" ol Parole boards also face considerable political pressures to keep
inmates in prison"02 If an Apprendi analysis results in greater discretion
during suitability determinations (e.g., by making binding regulations ad397. Id.
398. See Ian Ayres, Super Crunchers 118 (2007). Ayres focuses on the dangers that
arise when decisionmakers override statistical indicators of risk. Id. at 123. This is not at
issue in California, however, where the parole board ignores statistical indicators of safety
in deciding that practically everyone is too "dangerous" to release. See In re Dannenberg,
104 P.3d 783. 811 (Cal. 2005) (Moreno, j.. dissenting) (finding "no indication that the
Board exhibits particular expertise regarding which prisoners constitute a threat to public
safety or are othenvise suitable for parole," since it ignores the uncontradicted findings of
psychiatric experts); see also Monahan, supra note 250, at 405-13 (arguing actuarial tools
are generally superior to individuals employing a clinical approach). For statistics on
parole release rates in California, see supra text accompanying notes ]44-]5l.
399. Berman & Bibas, supra note 200, at 38.
400. Rothman, supra note 84, at ]62; see also Mauer ct a1., supra note 34, at 30
(finding that "nvo-thirds of states maintain[ ] no standards for professional qualifications"
for parole board staft).
401. Abramsky, supra note 55. A press secretary at the Department of Corrections
and Rehabilitation described a process that almost defines arbitrary and capricious,
describing the relevant factors in determining suitability as a mixture of instinct, body
language, "[w]hat they say" and "[w]hat you hope they say but they don't. You can't
presume that because one commissioner granted a date, another commissioner hearing
the same case will do that. It's not a mathematical formula." Id. Treating similar cases
dissimilarly is one of the hallmarks of capriciousness. At the CDCR, however, it's a policy.
402. Exact data on this subject is hard to come by, but at least one parole board
member, appointed in part because her father and stepmother were murdered and she
was supposed to bring a victims' rights perspective to the parole board, said that she was
relieved of her post because she granted "too many" parole releases-twdve cases out of
three hundred. Julia Reynolds, Parole Board Members Feel Pressure, Monterey County
Herald, Oct. 9, 2007, at A]; see also Mauer et al, supra notc 34, at 30 ("The politicization of
parole . . . renders the prospect of a rational and empirical consideration of each
individual's application for parole unlikely, with future electoral concerns more likely to
guide decisions."). Perhaps the fact that the parole board feels political pressures means
that the system is getting the feedback it needs. I might argue, however, that the pressure
of victims' groups represents a market failure/tragedy of the commons situation (that is,
while the population at large has a greater stake in the administration of justice than
victims' groups, the groups concentrate their power in a readily identifiable, politically
powerful way), but that is outside the scope of this Article.

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visory), this arbitrariness is likely to increase. 403 But at least the parole
board will be doing a job which it was designed to do, not redoingpoorly-a job the jury can handle just fine.
CONCLUSION

The Apprendi right limits the government's power to punish. Current policy allows the parole board to second-guess the jury, deeming a
crime sufficiently heinous, atrocious, or cruel to deny suitability for parole even when a jury did not. Because tile "some evidence" standard is
so deferential, a prisoner cannot effectively revisit this assessment in
court. Even if a prisoner in California has no right to a finding of suitability, he has the right to have the limits of his conviction mean something.
The parole board should, therefore, not consider the commitment offense in determining a prisoner's suitability for parole.
Admittedly, second degree murder cases present difficult questions.
The murders are often brutal and committed for trivial reasons. 404
Apprendi himself was an unsympathetic criminal (an admitted racist), as
was Blakely (a wife beater). The unsavory nature of the crime is a heavy
thumb on the scale, but this impulse is what the rule of law guards
against. The parole board was not created to pass judgment on whether
the crime was reprehensible-society, acting through the jury, has already expressed its opinion with a lengthy prison sentence. The
California parole regulations "contemplate that an inmate may be
deemed suitable for release even though his offense demonstrated 'exceptionally callous disregard for human suffering. "'405 And "all second
degree murders by definition involve some callousness-i.e., lack of emotion or sympatlly, emotional insensitivity, indifference to the feelings and
suffering of others."406 The punishment has already been inflicted; the
parole board's role is only to assess whether the prisoner can be returned
safely to society.
California, through its legislature, has said that fifteen years is a sufficient penalty to serve for second degree murder. A jury may find facts
justifying another punishment, or the legislature can change the punishment for a given set of behaviors. Society or the jury must make its decision up front, however, rather than sneaking retribution in through the
403. For a discussion of why capricious parole would have no policy appeal and is
therefore more of a theoretical possibility than one likely to be enacted, see supra Part

III.B.3.
404. See. e.g., Irons v. Carey (Irons II), 505 F.3d 846, 849 (9th CiL 2007) (relaying
factual background of murder, where potential parolee shot housematc twelve times,
stabbed him twice in the back, wrapped him in a sleeping bag for ten days, and finally
dumped his body in the Pacific Ocean, all because he thought his housematc was dealing
drugs and stealing from the home).
405. In re Scott (Scoll I), 15 Cal. Rptr. 3d 32, ·t6 n.1l (CI. App. 2004) (quoting Cal.
Code Regs. til. 15, § 2402(c)(I)(D) (2003)).
406. In re Smith, 7 Cal. Rptr. 3d 655, 673 (CI. App. 2003).

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back door. If the inmate deserves a greater punishment than that currently prescribed in the second degree murder statute, society needs to
establish that greater punishment through open deliberative processes,
"'with full awareness of the consequences, unable to mask substantive
policy choices' of exposing all who are convicted to the maximum sentence it provides."40? Unsuitable life sentences do none of these things.
They do not measure rehabilitation, and they do not voice community
disapproval. All they provide is some weak incapacitation effect, without
any political checks and balances. 408
Although "[n]o ideal, error-free way to make parole-release decisions
has been developed,"409 the role of the parole board is, properly, to make
an assessment of the current state of the criminal, not a past judgment of
his crime. That judgment is rightly, and constitutionally, left to the jury.
The facts about a commitment offense underlying an unsuitable life sentence were known at the time of trial. The jury could have found these
crimes heinous enough to warrant a sentence of life without the possibility of parole, but did not. The parole board may not revisit this judgment
without violating a prisoner's Sixth Amendment and due process rights
under Apprendi v. New Jersey.

407. Apprendi v. New Jersey, 530 U.S. 466, 490-91 n.l6 (2000) (quoting Patterson v.
New York, 432 U.S. 197, 228-29 n.13 (1977) (Powell, j., dissenting)).
408. The incapacitation effect is weak because an offender serving an unsuitable life
sentence displays no indications that his release will threaten public safety other than the
facts of his commitment offense-which, after more than a decade, are not strongly
probative of a threat. Prisoners who pose more obvious threats to public safetycontemporary violence, mental instability, persistent antisocial attitudes-would continue
to be incapacitated (but not punished) under my analysis, since these are indicia of public
safety threats well within the heartland of parole expertise.
409. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. I, 13 (1979).