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Retributive Justice and Hidden Sentencing

Laura I Appleman

Willamette University College of Law

Ohio State Law Journal, Vol. 68, p. 1307, 2007

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.

Part I of this Article looks at Blakely and its predecessors, and reviews how this line of cases has re-focused our attentions on the origins and legitimacy of facts in sentencing. Part II will explore how the Court's re-discovery of the 6th Amendment jury right supports a modified retributive jurisprudence of sentencing: Subsection A will provide a brief history of American sentencing theory; subsection B explains how a theory of limited expressive retribution best explains the Court's recent sentencing decisions, and how this new jurisprudence authenticates the Blakely changes to ancillary sentencing. Subsection C attempts to use this theory of retributive justice as a guidepost for modifying ancillary sentencing proceedings. Finally, Part III goes over the history of ancillary sentencing proceedings, and then evaluates the fate of some common state ancillary sentencing proceedings under Blakely's mandate. My end goal is to illustrate how Blakely's animating principles and theoretical underpinnings might reshape the fate of hidden sentencing.

Number of Pages in PDF File: 79

Keywords: sentencing, Blakely, retribution, juries, Sixth Amendment, hidden sentencing, jurisprudence

JEL Classification: K14, K42

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Date posted: March 26, 2007 ; Last revised: February 12, 2008

Suggested Citation

Appleman, Laura I, Retributive Justice and Hidden Sentencing. Ohio State Law Journal, Vol. 68, p. 1307, 2007. Available at SSRN: http://ssrn.com/abstract=970364

Contact Information

Laura I Appleman (Contact Author)
Willamette University College of Law ( email )
245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6651 (Phone)
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