Appellate review of sentences: reconsidering deference.

• Author: O'Hear, Michael M.

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. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. (8) Although several scholars have called for more robust appellate review of sentences, (9) the case for deference has not yet been critically examined on its own terms. Instead, scholars focus on rule-of-law concerns: high deference means that each sentencing judge makes his or her own law, and there is no real safeguard against unwarranted disparities. (10) But this criticism does not really address the basic claim of the appellate courts: that is, deference results in higher quality sentences that more fully take into account all of the nuances of each case, a value that Professor Kyron Huigens calls "fine-grainedness." (11) If deference commonly results in higher quality sentences in this sense, it is not immediately clear why rule-of-law values should trump fine-grainedness values (or vice versa, for that matter). If we grant the appellate courts' premise that trial courts are better positioned to make high quality sentencing decisions, we seem to be at an impasse.

But, in truth, the case for deference is not nearly as strong as the appellate courts seem to believe. Indeed, psychological research on cognition and decision making provides reasons to think that appellate courts may actually be better positioned than trial courts to make high quality, fine-grained sentencing decisions. For instance, the appellate judge's reliance on a "cold transcript" may actually help by providing insulation from misleading visual cues at the in-person sentencing hearing. (12) On the other hand, moving beyond the vague and dubious cliches invoked by the appellate courts, it is possible to imagine one real advantage that trial judges do have: they are more likely to possess background information not contained in the formal court record regarding relevant local circumstances. (13) Thus, for instance, trial judges are probably better positioned than appellate judges to adapt sentences to fit community values. (14) But localization is not equally appropriate in all cases. If a defendant's victims are dispersed across several communities, for example, it might seem arbitrary to select the values of any one community to control the sentencing decision.

Once persuasive grounds for appellate deference are identified, it becomes easier to see that the justification for deference is not uniformly strong across the board. Thus, a selective, sliding-scale approach to deference may be an effective way to limit deference to those cases in which it is actually most likely to contribute to high quality decisions, while maintaining an emphasis on rule-of-law values elsewhere. (15)

In developing these points, this Article proceeds as follows. Part I identifies in more detail the basic values at stake and takes a first cut at making the case against deference. Part II critically analyzes the case that has been made for deference and advances a new account based on the trial judge's background knowledge of local circumstances. Finally, Part III proposes the sliding-scale approach as preferable to high deference across the board.

Three caveats are in order before proceeding. First, my concern in this Article is solely with the role of appellate courts in jurisdictions that either employ nonbinding, "advisory" sentencing guidelines, or do not have sentencing guidelines at all. A rich body of scholarly literature addresses the role of appellate courts in policing guidelines compliance in mandatory jurisdictions. (16) However, the number of states with mandatory guidelines, which has never been a majority, has actually been declining in recent years, (17) and even the federal system switched from mandatory to advisory in 2005. (18) The current trend away from mandatory guidelines makes a reconsideration of the appellate role in nonmandatory jurisdictions especially timely. (19)

Second, my analysis concerns only subconstitutional appellate review. A considerable amount of scholarly work has been done on sentence review under the Cruel and Unusual Punishment Clause of the Eighth Amendment. (20) At present, however, the governing Eighth Amendment jurisprudence does not provide a meaningful basis for the review of noncapital sentences. (21) If appellate review is to become more robust, the more promising path would appear to be the courts' statutory or inherent authority to review trial court sentencing decisions.

Third, the Article focuses not on the formal label attached to appellate review, but on the actual degree of deference accorded sentencing decisions. (22) Most jurisdictions seem to have adopted "abuse of discretion," or some slight variation on that terminology, to describe the formal standard of review for sentences. (23) But abuse of discretion is a notoriously protean standard, which sometimes involves virtually limitless deference and sometimes almost no deference. (24) I have no quarrel with continued use of "abuse of discretion" (or any of its close cousins) as the formal standard of review for sentences; my concern is with the content that is given to the label--high deference versus low deference.

1. THE CASE AGAINST DEFERENCE: A PRELIMINARY VIEW

   Although scholars have largely neglected the question of how much deference appellate courts should give to trial courts in a jurisdiction without mandatory guidelines, a sizeable body of work addresses the parallel question of how much discretion trial court judges should have in a system with mandatory guidelines. (25) In grappling with this question, different scholars use different terminology and reach different bottom-line conclusions, but there is a general consensus as to the fundamental values that are at stake. These same values also play an important role in assessing the appellate role in a nonmandatory system.

   The fundamental, competing values may be characterized as "legality" and "fine-grainedness." (26) Legality refers to those traits that we commonly associate with the ideal of rule of...