Back to RJ Archive

Retributive justice and hidden sentencing.

Appleman, Laura I.
June 4, 2015

Source: (2007) Ohio State Law Journal. 68(5): 1307-1385.

Blakely v. Washington’s potential impact on hidden sentencing proceedings has been almost entirely unexplored. …
If the definition of “statutory maximum” is itself limited to only the actual length of time the offender spends in prison,
as opposed to all the other ancillary sentencing proceedings that can increase an offender’s punishment, then Blakely’s
scope is considerably constricted. … First, as others have noted, a number of “sentencing determinations depend on
judicial findings of prior conviction facts (even in states without guideline systems), and . . . many pre- Blakely sentences
have been affirmed post-Blakely by relying on the prior conviction exception,” which itself hangs on the continuing
validity of Almendarez- Torres. … I include six types of proceedings: (1) pre-sentence reports; (2) persistent felony
offender enhancement schemes; (3) probation; (4) parole; (5) post-release supervision; and (6) restitution. … It is instructive,
then, to parse out what parts of the PSR may not comport with Blakely’s requirement that juries find all facts
that increase an offender’s punishment. … The California trial court has the discretion to direct a probation officer to
“investigate all facts relevant to the sentencing of the person,” which presumably includes any fact-finding about the
offender relevant to restitution. (Author’s abstract)


Support the cause

We've Been Restoring Justice for More Than 40 Years

Your donation helps Prison Fellowship International repair the harm caused by crime by emphasizing accountability, forgiveness, and making amends for prisoners and those affected by their actions. When victims, offenders, and community members meet to decide how to do that, the results are transformational.

Donate Now