Appellate Review of Sentences: Reconsidering Deference

ABSTRACT American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial court discretion. This Article thus provides the first systematic critique of the appellate courts" standard justifications for deferring to trial court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision making. Despite the shortcomings of the standard justifications, this Article suggests that there is a stronger argument for deference that is based on the trial judge's background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, this Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient. TABLE OF CONTENTS INTRODUCTION I. THE CASE AGAINST DEFERENCE: A PRELIMINARY VIEW II. THE CASE FOR DEFERENCE A. What the Courts Say About Deference 1. There Are No Clearly Correct Answers 2. Trial Judges Have More Experience 3. Trial Judges Have Access to Demeanor Evidence 4. Sentencing Requires Fine-Grained Judgment 5. Sentencing in a Blink B. The Localization Account C. Assessing the Case for Deference III. THE SLIDING-SCALE APPROACH A. Indicia of Low Transaction Costs B. Indicia of High Legality Concerns C. Indicia of Weak Localization Benefits D. Recap and Illustration CONCLUSION INTRODUCTION More than thirty-five years ago, Judge Marvin Frankel famously denounced sentencing in the United States as 'law without order." (1) In the absence of clear legal standards governing punishment or meaningful appellate review, the unchecked discretion of sentencing judges produced what Frankel characterized as "horrible disparities" (2)--"a wild array of sentencing judgments without any semblance of the consistency demanded by the ideal of equal justice." (3) In some states, the criticisms of Frankel and other reformers resulted in the adoption of binding sentencing guidelines. (4) In most states today, however, sentencing occurs without guidelines or with unenforceable, advisory guidelines. (5) In these states, appellate review might supply what guidelines do not: a safeguard against outlier sentences and a source of reassurance that terms of imprisonment are no longer than demonstrably necessary to advance the basic purposes of punishment. Yet state appellate courts have, almost without exception, shied away from these important tasks. (6) The extraordinary deference given to sentencing judges doubtlessly owes much to the appellate courts' fear that more robust review would invite a sharp increase in the number of sentence appeals. (7) But the appellate courts themselves defend deference on other grounds, chiefly that trial level judges are better positioned to make good sentencing decisions. The Pennsylvania Supreme Court's reasoning is typical: The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is "in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it." Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. …