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June 30, 2009

Notable new article on "Appellate Review of Sentence Explanations"

I see from this post at Prawfs that Michael O'Hear has another important new piece on SSRN about sentencing explanations.  This new piece is titled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences," and here is the abstract:

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves.

The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

June 30, 2009 at 09:55 PM | Permalink


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"Explanation Review" without substantive review is worthless. There is no objective correlation between the term of imprisonment a defendant serves and his crime. These are arbitrary decisions. One reasonable judge may deem a short sentence appropriate, another reasonable judge may deem a long sentence appropriate. Neither is correct or incorrent. A desire for greater explanation of the inexplicable is truly an academic exercise that gives the appearance of meaning without having any actual meaning. It's all a charade. We should admit it and move on. If the legislature wants to narrow (or create) maximum and minimum sentences for crimes, that's one thing. To think that judges can determine the "right" sentence within the range established by the legislature is an inherent fallacy. Moreover, appellate courts will always be limited by their inability to see the defendant/witnesses and take the time to evaluate an appropriate decision. THAT's why appellate review of sentencing decisions is inherently limited to stopping extreme, aberrant sentences and nothing else. We shouldn't even try to create a form of appellate review -- either substantive or "explanatory" -- that does nothing real.

Posted by: Mark Pickrell | Jul 1, 2009 10:49:46 AM

I disagree. “Explanation review” is not only more administrable than substantive review (which requires appellate courts to substitute their not-necessarily-superior normative judgments for those of sentencing courts), but it provides far more protection against abuse of discretion than the sort of procedural review most courts now employ. As Michael’s piece notes, the problem with the Wisconsin Supreme Court’s Gallion decision wasn’t the standard it announced, but the court’s failure to properly apply its “reinvigorated” McCleary standard to the facts of the case before it. By allowing the trial judge’s long (but substantively vacuous) sentencing statement in that case to substitute for a true reasoned explanation of the sentence imposed, the court ensured that Gallion would have little practical effect in Wisconsin courtrooms. That doesn’t mean, however, that the principles articulated in the Gallion decision can’t be properly applied by sentencing and appellate courts: they most certainly can. Those interested in the Gallion case and its theoretical underpinnings should read the short amicus brief filed in the Gallion case by law profs Walter Dickey, David Schultz, and Michael E. Smith. It provides a brief but useful explanation of how a sentencing judge should go about the process of selecting and explaining a sentence and what factors an appellate court should focus on when determining whether a trial court’s explanation for its chosen sentence passes muster.

Posted by: Cecelia Klingele | Jul 1, 2009 1:19:37 PM

I'm skeptical but open to being persuaded. Can you please send a copy of the professors' amicus brief?

I have to admit that my skepticism is deepened by an approach that has "theoretical underpinnings" and that is "more administrable than substantive review." It's sounds like we're administering something theoretical that doesn't really matter -- in fact, which CAN'T ever matter.

Frankly, this issue sounds like another item in the unfortunate growing division between the Academy on the one hand and the Bench and the Bar on the other. I'm not surprised that the Wisconsin Supreme Court has approved a "long sentencing statement" by a trial judge that certain academics consider to be "vacuous," despite some professors' "theoretical underpinnings" about the way trial sentencing and appellate review of sentencing should work.

And please don't take my comments here as disrespect for the legal Academy. I just feel that sometimes academic theory is too disconnected from the reality of what lawyers and judges do, and must do. This seems to be one of those times.

Moreoever, there's also something political in this topic regarding the relative roles of trial judges and appellate judges, which I believe currently exists in the federal sentencing environment. Appellate courts are inherently inferior to trial judges when it comes to individualized sentencing. Yet, post-Apprendi-Booker-Gall, federal appellate courts can use their power of "reasonableness" review -- along with their power to assess the adequacy of the trial judge's explanation of his/her sentence -- to substitute their judgment for the trial-court judge's. In this way, a theoretical exercise, advocated by many academics for the sincerest of reasons, can be twisted into a political/power exercise on the part of appellate courts.

Substance matters most. Practicalities matter. Power dynamics are real. Academic theories that don't take into account the practicalities of the world and the power dynamics within it can be misguided.


Posted by: Mark Pickrell | Jul 2, 2009 1:06:34 PM

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