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

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