Sentence appeals in England: promoting consistent sentencing through robust appellate review.

• Author: Rosenbaum, Briana Lynn
• Position: I. Introduction through III. Sentence Appeals in England B. The Role of the Appellate Court in England 1. The Basic Structure of Sentencing in England, p. 81-118

1. INTRODUCTION

   When the Supreme Court mandated in Booker v. United States (1) that the federal courts of appeals review all criminal sentences for reasonableness in 2005, it opened the way for significant expansion of the appellate role in sentencing. Before Booker, the federal courts of appeals played only a very minor role in sentencing. Defendants did not have a right to appeal their sentences until 1889, and when they were finally granted that right, the federal courts of appeals chose to conduct only a very deferential review, primarily limited to review for some type of legal error. (2) The federal courts of appeals continued to play a more limited role in the sentencing process after the Sentencing Reform Act of 1984 and the development of the Federal Sentencing Guidelines (the "Guidelines," "federal Guidelines," or "Sentencing Guidelines"). (3) Their role was primarily an enforcement one, concentrated on ensuring that sentencing courts did not stray far from the strictures of the Guidelines. (4) The federal courts of appeals deferred to the sentencing judgments of both the district courts and the United States Sentencing Commission (the "Sentencing Commission"), the institution tasked by Congress with developing the Sentencing Guidelines on almost all issues of sentencing law and principles.

   Even after Booker, when the Supreme Court made the Guidelines advisory and mandated a broad substantive reasonableness review of sentences, the federal courts of appeals have largely rejected the unprecedented opportunity to take a more active role in the sentencing process. They have interpreted Booker's reasonableness review narrowly, upholding sentences so long as district courts consider the purposes of sentencing set out in 18 U.S.C. [section] 3553(a)--just punishment, deterrence, protection of the public, and rehabilitation--when making their sentencing decisions. Courts of appeals usually will not question the relative weights the sentencing courts place on those purposes, despite the fact that the weight a court attributes to a particular sentencing purpose (say rehabilitation versus protection of the public) often invokes vital questions of sentencing law and policy touching a broader class of cases throughout the criminal justice system.

   One of the more prominent examples of this deferential enforcement approach to appellate review is the Supreme Court's decision in Kimbrough v. United States, (5) in which the Supreme Court held that district courts could decide whether to reject the old 100-to-one crack-to-powder ratio in the Sentencing Guidelines. (6) After Kimbrough, it is entirely up to the judgment of individual district judges whether to treat crack-cocaine offenses more harshly than powder-cocaine offenses. (7) Such an approach to sentencing design, which leaves fundamental decisions of sentencing policy to the individual judgment of each district judge, can have troubling consequences, including unwarranted sentencing disparity, lack of transparency in sentencing, overreliance on the guidelines to justify sentences, and uncertainty for defendants facing sentencing. (8) This heavy deference to trial courts creates more than just an inconsistency problem. It is more deeply problematic that the resulting disparity is of such broad issues of policy that we would in other contexts normally consider them to be issues of law.

   One possible way to fix this problem and promote uniform application of sentencing law would be to expand appellate review to further a common law of sentencing independent of the Sentencing Guidelines. To do so would expand the lawmaking function of the federal courts of appeals, but would leave untouched their enforcement function related to the Guidelines. (9) This expansion of the appellate lawmaking function is uniquely desirable in the post-Booker sentencing regime because the advisory nature of the Sentencing Guidelines has undermined their intended function: to further sentencing consistency. Substantive reasonableness review can fill the gap that has resulted. As others before me have explained, the federal courts of appeals could use such review as an opportunity to articulate "general rules over time in the areas of policymaking and policy articulation" that would provide consistency and uniformity in sentencing, but that would also allow judges to consider individual circumstances. (10) Indeed, the Supreme Court has pointed out that appellate review is to play a primary role in maintaining uniformity and reducing disparity in the post-Booker advisory-Guidelines sentencing system. (11)

   Despite this potential, the appellate lawmaking role has been largely ignored since Booker. The primary focus has been enforcement--that is, sorting out how the courts of appeals can continue to ensure compliance with the Guidelines in an advisory-Guidelines world. (12) The failure to consider the appellate lawmaking role is unfortunate, for "appellate review of sentences may present the best hope" for balancing the need for a common law of sentencing with the need for individualized sentences. (13)

   Considering the heightened importance placed on appellate review in the post-Booker world, we ought to be thinking critically about whether the current design of federal appellate review actually furthers the goal of uniformity in sentencing. Unfortunately, notwithstanding the attention given to the question of whether a common law body of sentencing jurisprudence is a proper objective, few scholars writing after Booker have explored the practical administration of a robust model of appellate review in the federal system. (14) This is perhaps because we don't have the historical knowledge to understand how robust appellate review--characterized by both lawmaking and enforcement functions--would work in the context of advisory guidelines. In an article analyzing the Booker opinion shortly after it was issued, for example, one commentator explained that the Supreme Court's mandate for substantive review of criminal sentences "takes the federal system into uncharted waters" because "[n]o state system has ever conjoined meaningful sentence review with voluntary guidelines." (15)

   In this article, I use comparative method to fill that gap, examining appellate review of criminal sentences in England and Wales, (16) and using that examination to reconsider appellate review in the federal courts of appeals. In contrast to the review conducted in the federal courts of appeals, appellate review of criminal sentences in England is quite robust. The English Court of Appeal-Criminal Division has a hundred-year-long history of appellate-court development of sentencing principles through common-law review of sentencing decisions. In addition to filling this lawmaking role, that court has also long been responsible for enforcement of England's guidelines.

   Although other scholars have studied the English system of robust appellate review and its ability to further a common-law body of sentencing jurisprudence, these comparative studies are close to forty years old, and all were conducted before the development of the English Sentencing Guidelines in the 1980s. (17) No scholar has offered a comparative study of the modern design of the Court of Appeal in England, which continues to perform its historically robust lawmaking role while enforcing England's modern Sentencing Guidelines. Accordingly, this study provides new insights into how review in the federal courts of appeals can be expanded to promote a common law of sentencing, while at the same time enforcing the post-Booker advisory Guidelines.

   The appellate court in England conducts de novo review of sentencing law and principles to develop a common law of sentencing independent of the English sentencing guidelines. That is, England's Court of Appeal furthers sentencing consistency through its robust appellate lawmaking role, rather than simply through enforcement of the Guidelines. Through this approach, England has applied robust appellate review in a guidelines system that both: (1) provides sentencing courts with the necessary benchmarks to guide the sentencing decision, and (2) gives sentencing courts the discretion and flexibility they need to assure individualized sentences. The English model thus suggests a new way to design the role of the federal courts of appeals: moving from bodies that merely enforce guidelines to further consistency of sentencing outcomes to bodies that develop sentencing law in a way that furthers consistency of sentencing approach.

   Ultimately, I suggest that federal appellate courts borrow aspects of the English "mixed deference" model of appellate review. My model calls for de novo review of sentencing law and principles--including review of guidelines interpretations and decisions on how to weigh the statutory purposes of sentencing--but deferential review of other aspects of the sentencing calculation--including fact-finding, the application of sentencing principles and law to the facts, and the choice of actual sentence. The aim is to design the appellate role to provide guidance to sentencing courts and further a common law of sentencing, but to do so in a way that (1) is not anchored in the Guidelines, (2) keeps the bulk of the sentencing decision in the hands of the trial court, and (3) is limited to the issues that the courts of appeals best handle: sentencing law and policy.

2. REASONABLENESS REVIEW IN THE FEDERAL COURTS OF APPEALS

   1. Booker and Substantive Reasonableness Review

      Booker represented the culmination of a line of cases interpreting the Sixth Amendment's guarantee of a right to a jury trial in the context of sentencing. In Apprendi v. New Jersey, (18) for example, the Court had held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (19) In Booker, the Court applied this Apprendi...