Hidden Sentencing in Blakely’s Wake
posted by Laura Appleman
When we think of criminal punishment, we usually think about prison sentences–”hard time” or “going upstate.” But what about other types of sentences, the ones that are imposed in addition to prison, or in lieu of it? These kinds of proceedings, sometimes known as hidden sentencing, can include parole, probation, post-release supervision or restitution. So should they count as punishment too? If so, does the Supreme Court’s recent sentencing jurisprudence–Blakely, Booker, et. al–apply to these proceedings as well?
Conveniently enough, the answer to ALL* of these fascinating questions can be found in my latest article, currently posted on SSRN and being processed at a law review office near you :
Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing – what I call ancillary, or hidden, sentencing proceedings. These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.
Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely. As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court’s recent sentencing decisions. Specifically, I contend that a theory of limited expressive retribution best suits the Court’s new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment. My end goal is to illustrate how Blakely’s animating principles and theoretical underpinnings might reshape the fate of hidden sentencing.
*OK, maybe not all. If any one person or entity has ALL the answers about Blakely and hidden sentencing, it would probably be the Sentencing and Corrections Policy Project at the Stanford Criminal Justice Center, the Vera Institute’s Center on Corrections and Sentencing, or Doug Berman’s musings at Sentencing Law and Policy. Check ‘em out!