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October 12, 2009

New article on "Reconsidering Deference" in the appellate review of sentences

I just noticed here on SSRN that Professor Michael O'Hear has yet another important new piece concerning appellate review of sentences.  This new piece is titled "Appellate Review of Sentences: Reconsidering Deference," and here is the 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, the 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, the 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.

October 12, 2009 at 08:26 AM | Permalink


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Tracked on Oct 12, 2009 6:04:55 PM


Mathematically, the probability that two out of three appellate judges, who disagree with a district-court judge, i.e, where there's an appellate dissent, will get a decision "right" ("right" being defined as the outcome that would happen in the majority of a large sampling of the same case, tried many times over with different people as judges) is exactly the same as a district judge sitting alone. In other words, when your sample is one, or your sample is two judges one way, two judges another way, your samples are so small that each one is mathematically just as valid a predictor (in fact, it's MORE likely that the single judge is "correct" because in that situation there's a uniformity of opinion, whereas where there's an overrule with a dissent, the sample highlights the apparent variability of the outcome of that situation) of the "correct" outcome. By making rules where there's less appellate deference, you are not creating "more correct" outcomes. You are, instead, creating the potential for greater mischief, deception, or self-delusion. It's funny, because the author talks about how "we're all Legal Realists now." Well, if that's true, then mathematics indicates that greater deference is in order, not less, unless one has a basis to believe that appellate judges are "better" judges -- giving rise to the potential for greater political mischief.

Posted by: Mark Pickrell | Oct 12, 2009 10:59:22 AM

I agree with Mark's comment that about creating greater mischief. I think the problem with a sliding scale is that it sliding...it creates just one more opportunity for ambiguity and disagreement, just one more place where a line needs to be drawn. It seems to me that this opportunity for greater mischief is created without any clear benefits to it beyond appeasing one professors vision of what the law would be like.

As I have said many times in the past. If there is a significant problem with the trial judge the proper solution is not more appellate review; it's more political review. There is a political process to take care of these issues; let it do it's job.

Posted by: Daniel | Oct 12, 2009 1:56:25 PM

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