Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment (original) (raw)

2009, Columbia Law Review

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.