REID GRIFFITH FONTAINE, University of Arizona - Department of Psychology, University of Arizona - James E. Rogers College of Law
Email: rgf2@u.arizona.edu

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion. Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid. In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification. Because this three-requirement framework raises the floor of justification, it rejects numerous types of defense-related conduct that may qualify as justifiable by other theories. I believe that although these related forms of conduct are not necessarily justifiable, they may be excusable. As such, I outline and discuss a six-tier hierarchy by which self-defense and defense-related instances of reactive violence may be classified according to the degree (complete or partial) to which they are justifiable or excusable. In these ways, I address and attempt to resolve several critical questions about the nature of self-defense that have remained open in the literature.

JOSEPH L. HOFFMANN, Indiana University School of Law-Bloomington
Email: hoffma@indiana.edu
NANCY J. KING, Vanderbilt University School of Law
Email: Nancy.King@law.vanderbilt.edu

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

W. DAVID BALL, Stanford University - Stanford Criminal Justice Center
Email: wdball@gmail.com

Apprendi v. New Jersey and Blakely v. Washington threw contemporary state sentencing into disarray, completely revamping practices and procedures in light of a new understanding of the due process and Sixth Amendment rights at sentencing. While Apprendi and its progeny arguably represent a revolution in sentencing, there is one area that the revolution has left untouched: the view that the sentencing process ends when a judge in a courtroom pronounces a sentence. The Apprendi literature focuses on decisions a judge makes about the prescriptive sentence to be imposed, not on the actual sentence that is, in fact, imposed. This focus is particularly baffling when one considers that most states continue to use indeterminate sentencing, and that for the hundreds of thousands of prisoners serving indeterminate sentences, a parole board ultimately determines the length and disposition of the sentence they serve.

Discretionary parole release is one manifestation of the problems created when Apprendi is applied only to the judicial pronouncement of the sentence. I focus on one specific example of this larger phenomenon: the California parole board's practice of resentencing parole-eligible crimes into parole-ineligible ones, based on findings of fact it makes by the some evidence standard of proof. The California homicide statute divides parole-eligible crimes from parole-ineligible ones based on statutorily-enumerated special circumstances, among them that the murder was especially heinous, atrocious, or cruel. After Apprendi, a judge could not sentence an offender to a parole-ineligible sentence based on her own finding of special circumstances. Nevertheless, parole boards in California repeatedly deny parole for eligible prisoners based on their own findings that the crime was heinous, atrocious, or cruel - in some cases, even when the jury has explicitly found otherwise.

Indeterminate sentences, which combine retributive and rehabilitative components, delineate where - and, more importantly, why - the Apprendi jury right applies to some facts and not others. This restores needed coherence to the Apprendi right and saves it from the attack that it is merely formal, not substantive. Unraveling the issues in California's practice will clarify the underlying doctrine not just about parole and Apprendi, but about punishment itself. In other words, exploring parole via Apprendi will teach us something about parole, just as exploring Apprendi via parole will teach us something about Apprendi. Putting the two together illustrates larger issues about the punitive and rehabilitative aspects of sentencing, and on the judicial and executive limits of punishment.