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

I. 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.

II. REASONABLENESS REVIEW IN THE FEDERAL COURTS OF APPEALS

A. 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 rule to the Guidelines, holding them unconstitutional because a judge--not a jury--round facts that determined the allowable guidelines range and thus "determined the upper limits of sentencing." (20)

The Booker Court discussed several options for remedying this unconstitutional deficiency, including: (1) requiring that any facts necessary to impose punishment be submitted to the jury, (2) declaring the federal Guidelines unconstitutional in their entirety, and (3) rendering the Guidelines advisory. (21) Ultimately, the Court chose the third option, rendering the Guidelines advisory. Under the now-advisory Guidelines, district judges need only "consult [the] Guidelines and take them into account when sentencing," but are "not bound" to follow them. (22) As Justice Stevens explained, "when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." (23) After Booker, district judges must consider "all of the [section] 3553(a) factors to determine whether they support the sentence" and only then, after making "an individualized assessment based on the facts presented," can the judge decide whether an outside-guidelines or inside-guidelines sentence is warranted. (24)

The Court recognized that its decision to render the Sentencing Guidelines advisory--and thereby greatly expand the discretion of sentencing judges--undermined Congress's original intent to increase sentencing uniformity. (25) To at least partially remedy this problem, the Court read into the Sentencing Reform Act a "reasonableness" standard of review. (26) The courts of appeals must now review all sentences for reasonableness, "irrespective of whether the trial judge sentences within or outside the guidelines range," (27) as this reasonableness review will "tend to iron out sentencing differences" and "promote uniformity in the sentencing process." (28)

Reasonableness review contains two parts: procedural and substantive. Procedural reasonableness review is the clearest and less controversial of the two. This is both because the Court has provided clear guidance on what is involved in procedural reasonableness review and because appellate courts have been engaging in some form of procedural review for decades. As the Court has explained, then, procedural reasonableness review entails courts' examining sentences for procedural error,
 such as failing to calculate (or improperly calculating) the
 Guidelines range, treating the Guidelines as mandatory,
 failing to consider the [section] 3553(a) factors, selecting a
 sentence based on clearly erroneous facts, or failing to
 adequately explain the chosen sentence--including an
 explanation for any deviation from the Guidelines range. (29)


The second, more controversial, aspect of reasonableness review is substantive reasonableness review, for which the Court has provided far less guidance. In Gall, the Court explained that substantive reasonableness review equated to "a deferential abuse-of-discretion standard," (30) and that the courts of appeals "must review all sentences--whether inside, just outside, or significantly outside the Guidelines range"--for abuse of discretion, taking into account the "totality of the circumstances." (31) However, apart from offering this general "totality" standard, the Court has offered little guidance on just how deferential substantive reasonableness review should be.

The Court has repeatedly emphasized that the appropriate appellate review is deferential, stressing that the sentencing judge "has greater familiarity with ... the individual case and the individual defendant before him than the Commission or the appeals court" and "is therefore in a superior position to find facts and judge their import under [section] 3353(a) in each particular case." (32) The Court has also suggested that a "closer review" of a sentence that deviates from the Guidelines is appropriate if the deviation is based solely on a policy disagreement with the Guidelines. (33) Furthermore, when a sentence varies from the Guidelines, the Court allows--but does not require--appellate courts to "take the degree of variance into account." (34) And similarly, the Court has said that appellate courts may--but are not required to--presume that a within-guidelines sentence is reasonable. (35)

As can be expected, this inconsistent and incomplete description of substantive reasonableness review has led to equally inconsistent and incomplete applications in the circuit courts. As a number of scholars have observed, approaches among and within the courts of appeals vary widely, from those that are highly deferential to district courts' sentencing decisions to those undertaking a closer review of the justifications for sentences. (36) Indeed, one analysis of substantive-reasonableness-review decisions in the Eleventh Circuit described the court's approach as "wildly inconsistent," varying from review that looks like de novo review of sentencing factors to quick affirmations of sentences "with no meaningful analysis at all." (37) These inconsistencies have led to widespread criticism throughout the academy. (38)

To further illustrate the various approaches of the federal appellate courts, I will borrow the approach that places appellate judgments into two "camps." (39) The first camp is "extremely deferential to the district court." (40) So long as the district court follows the proper procedures, considers the [section] 3553(a) factors, and makes a decision that is within reason, courts of appeal in Camp I will not disturb it. (41) The second camp is "less deferential to the district court." (42) Review by courts in Camp II usually includes some amount of "re-weighing" of facts in re-evaluating the "district court's decision-making calculus in terms of the weight the judge assigned to each of Congress's stated sentencing goals, as set forth in [section] 3553(a)." (43)

1. The Camp I Approach: Kimbrough

A majority of substantive reasonableness review decisions are characterized by the Camp I, deferential approach. (44) A famous example of this deferential approach to reasonableness review is Kimbrough, in which the Supreme Court held that federal courts of appeals must defer to district court decisions on whether to reject the old 100-to-one crack-to-powder ratio in the Sentencing Guidelines. (45) Kimbrough had pleaded guilty to several drug-related offenses, including possession with intent to distribute more than fifty grams of crack cocaine, which made him subject to a much higher Guideline sentence than if his offense had involved only powder. (46) Accordingly, the sentencing range recommended by the Guidelines was roughly twenty years. (47) The district judge instead sentenced Kimbrough to the mandatory minimum sentence of fifteen years, in part because he disagreed with the 100-to-one ratio, and he noted in his opinion that the case exemplified the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." (48) The Fourth Circuit vacated that sentence, finding a sentence outside the Guidelines range per se unreasonable when based on a "disagreement" with the Guidelines themselves. (49)

The Supreme Court reversed, holding that a sentencing judge may deviate from the Guidelines if "a within-Guidelines sentence is 'greater than necessary' to serve the objectives of sentencing," (50) and that the decision to deviate from the crack/powder ratio for policy reasons was reasonable in Kimbrough's situation. (51) After Kimbrough, then, courts of appeals must review decisions that deviate from the Guidelines under the same standard applied to all post-Booker sentences: reasonableness. (52)

While the Court's decision may be lauded for its reasoned rejection of a greatly reviled sentencing policy, the most striking part of the Kimbrough decision for the purpose of this article is what the Court did not hold: that the crack/powder ratio is unwarranted as a matter of law. The Court instead left this to the discretion of individual district judges, even though it failed to provide district courts with any guidance on either: (1) how to decide whether to follow the ratio, or (2) what a new ratio might look like.

2. The Camp I Approach Meets the Camp H Approach: McBride

The majority and dissenting opinions in United States v. McBride (53) illustrate both reviewing courts' typical hesitation to provide guidance on sentencing policy and the more active approach to sentence review. The facts are straightforward: McBride pleaded guilty to distribution of child pornography after he was found with hundreds of photos and videos of child pornography, some involving prepubescent minors and sadistic or masochistic material. (54) He had an extensive history of physically abusing and molesting children; had admitted being sexually attracted to children; had violated a court order to stay away from children; and had already failed in several treatment programs. (55) The Guidelines recommended a prison term ranging from thirteen to sixteen years, but the district court sentenced McBride to only seven years in prison followed by ten years of supervised release, citing the extreme hardship that he had endured as a child. (56) Indeed, the district-court opinion called the defendant's history--which included violent physical abuse by his mother and uncle at age two and sexual abuse by his grandfather--"perhaps one of the worst histories" the district judge had ever seen. (57)

The government appealed, calling the sentence substantively unreasonable because the district court had put too much weight on the defendant's past hardship and not enough on the need for incapacitating a repeat pedophile. (58) The Eleventh Circuit observed on appeal that the district court had considered the need to protect the public. (59) In light of this, the Court affirmed the sentence as reasonable, despite suggesting that it was uncomfortable with the district court's sentencing choice:
 Even if we were to disagree with the weight that the district
 court gave to Defendant's history of abuse, we will only
 reverse a procedurally proper sentence if we are 'left with
 the definite and firm conviction that the district court
 committed a clear error of judgment in weighing the
 [section] 3553(a) factors. (60)


In contrast, the McBride dissent would have found the sentence substantively unreasonable for overvaluing the defendant's past hardship and not sufficiently considering "the seriousness of the offense, the need for deterrence, and the need to protect the public." (61) Not only was the sentence too low, according to the dissenting judge, but he asserted that nothing less than "a term of lifetime supervised release" would adequately protect the public. (62)

This juxtaposition provides a particularly clear example of the two camps. The McBride majority follows the deferential approach used in Kimbrough: The goal is simply to determine whether the sentence can be justified, and so long as the sentencing court has some basis in reason to justify the sentence, the appellate court will not interfere. After McBride, it is up to district judges in the Eleventh Circuit to determine whether a defendant's past hardship should be a mitigating factor in a case involving possession of child pornography, and, if it should be, when. But what purposes of punishment are fulfilled by taking past hardship into account? Does a background of hardship make the defendant less culpable because it caused his later pedophilia? If not, is mitigation merely an act of mercy? And is showing mercy a proper consideration in such a case? Under a Camp I process, district judges must formulate, and then answer, these questions for themselves. They have no guidance on how to deal with similarly situated defendants in subsequent cases.

But the McBride dissent hits these issues head on, stating clearly that deterrence is key: "Allowing someone who will unquestionably continue to remain a danger to society's most vulnerable citizens--its children--to live free of any restrictions at any age, let alone at such a young age ... is substantively unreasonable." (63) District judges required to sentence pedophiles under such a rubric would know how to structure the evaluation of a similar case.

3. The Camp II Approach: Pugh, Amezcua-Vasquez, and Padilla

Examples of the less deferential, Camp II, approach to appellate review include United States v. Pugh, (64) United States v. Amezcua-Vasquez, (65) and U.S. v. Jayyousi (Padilla). (66) In Pugh, the Eleventh Circuit held that a sentence of only five years' probation was unreasonable for a defendant who had unintentionally downloaded child pornography. (67) In finding Pugh's sentence unreasonable, the Eleventh Circuit discussed several philosophies of punishment that were ill-served by a sentence of probation, including the need for deterrence of crimes that create an incentive for the production of child pornography and the need to treat the crime of child pornography seriously. (68)

Similarly, the Ninth Circuit in Amezcua-Vasquez overturned a sentence of four years and four months as substantively unreasonable because the district court had applied a sixteen-level sentence enhancement based on a twenty-five-year-old violent felony. (69) Although the Ninth Circuit agreed that the old felony conviction was an aggravating factor, it held that the district judge should have taken the age of the conviction into account in setting the amount of the enhancement. (70)

And in the case involving Jose Padilla, the Eleventh Circuit held that a seventeen-year sentence for inciting terrorism--twelve years below the Guidelines level--was substantively unreasonable. (71) Holding that the district court gave too much weight to the fact that Padilla had allegedly been tortured during pretrial confinement (72) and noting that the district court also failed to consider his "terrorism training," (73) the Eleventh Circuit emphasized the importance of incapacitating terrorists, who "are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation." (74)

Despite the promise of these Camp II examples, there is reason to doubt that meaningful appellate guidance on sentencing principles will become the norm. First, these types of opinions are rare, as most courts are highly deferential when faced with substantive reasonableness appeals. (75) One recent study of appellate reasonableness review decisions shows that, in the six years since the Supreme Court's decision in Gall, the federal courts of appeals had by the summer of 2013 reversed only forty-four sentences for substantive unreasonableness--twenty as unreasonably high and twenty-four as unreasonably low. (76) Furthermore, when the courts of appeals provide more meaningful and binding sentencing guidance, they usually do so only when forced to justify the rare decisions in which they hold sentences unreasonable. Thus, as Pugh, Amezcua-Vasquez, and Padilla demonstrate, appellate guidance on sentencing policy is often prescriptive and provides guidance for only the outer fringes of acceptable sentencing choice. By issuing lawmaking judgments in these very safe fringe cases, appellate courts are engaging in the most limited lawmaking role; they are merely policing the edges of sentencing discretion.

And a final reason to doubt the future viability of the Camp II approach is the fact that it is subject to considerable criticism. For example, one commentator characterized the Pugh court's "overreach" in conducting what the author called "de novo review" rather than reviewing for abuse of discretion. (77) Another accused the Eleventh Circuit of "ignoring Gall" and failing to give sufficient deference to the discretion of the sentencing court. (78) And, after Amezcua-Vasquez, a third accused the Ninth Circuit of "creat[ing] an unjustified exception to uniformly deferential review" that ultimately "undermines the Ninth Circuit's policy of promoting district court discretion." (79)

B. Negative Consequences of Deferential Review

The above analysis reveals several negative consequences of deferential review. First, it raises the potential for application of different sentencing policies throughout the judicial system. This point has been ably made in a critique of Kimbrough that characterizes the Supreme Court as "[g]ranting district courts leeway on how to value the different factors," noting that this "would mean that different courts sentence under different rules of law." (80) Under such a scheme, "[o]ne court might heavily value the reduction of disparity, for example, while another might most heavily favor parsimony." (81) Judge Lynch of the Second Circuit once articulated a similar concern, arguing persuasively that "we cannot have a coherent public policy on narcotics if half the sentencing judges are fighting a 'war on drugs' and the other half are pursuing non-punitive rehabilitative treatment options." (82) Indeed, "the law cannot claim to be fair and just when the same defendant may serve 15 years in prison or receive a short stay in a treatment program depending on the policy preferences of the judge before whom he happens to appear." (83)

Furthermore, the need for guidance on sentencing policy is heightened as a result of the Supreme Court's decision in Booker to render the Guidelines advisory. Cases like Kimbrough and McBride demonstrate the district courts' wide latitude after Booker to reject the Guidelines--in part or in whole--so long as there is some basis in reason for the decision. After Booker, district judges may consider a number of factors that were prohibited under the mandatory Guidelines, including drug or alcohol addiction, socioeconomic status, and factors like a lack of appropriate adult supervision and family support during childhood that suggest a disadvantaged upbringing. (84) Yet without guidance on how to apply these factors, and in particular, how these factors relate to the purposes of punishment, there is a danger that district courts will simply choose not to exercise their discretion at all. (85) Indeed, one observer has pointed out that "[g]iven the potential for confusion, it may prove easier to apply the guidelines in most cases and then use boilerplate language to justify that decision." (86)

Another concern with the deference given to district judges on issues of sentencing policy is the resulting uncertainty for the defendant. As one commentator has noted, because defendants do not know the policy preferences of the sentencing judge, their ability to prepare an effective defense is undermined. (87)

Theoretically, the Sentencing Commission has been charged by statute with reviewing sentencing decisions and shaping sentencing principles in response. (88) Section 991 (b)(1) of Title 28 tasks the Sentencing Commission with establishing "sentencing policies and practices" for the federal criminal justice system that--(A) "assure the meeting of the [[section] 3553(a)] purposes of sentencing," (B) "provide certainty and fairness," and "avoid[] unwarranted sentencing disparities," and (C) "reflect ... advancement in knowledge of human behavior." But the Commission has been subject to significant criticism for its failure to perform these roles. (89) First, a number of scholars have argued that the Commission has rejected its statutory mandate to "assure the meeting of the [[section] 3553(a)] purposes of sentencing" in developing the Guidelines. (90) Under this mandate, the Commission had an obligation "to build a system on a foundation of purposes and to give guidance to judges as to how purposes should be factored into determining sentences under the guidelines." (91) Instead, the Commission chose an "empirical approach" to sentence uniformity, determining the "average" of prior sentences and setting numerical ranges of appropriate sentences based on these averages. (92) And "[t]hough an empirical analysis may provide a useful starting point, purposes are needed to explain deviations from the empirically produced sentences." (93)

Second, even if the Commission did undertake to review sentencing decisions for application of sentencing principles, it is unlikely that such decisions, as they are currently written, will yield meaningful information about the sentencing purposes and policies animating individual sentencing choices. Scholars have observed that actual sentencing opinions often offer little more than information about sentencing results. (94) Despite Booker's mandate to consider the [section] 3553(a) factors independently, sentencing decisions still contain little discussion of purposes of punishment or penological philosophy. As one scholar observed before Booker,
 [e]ven though every sentencing case called for the
 resolution of a range of issues that could be informed by
 broad normative concepts, and even though the [Sentencing
 Reform Act] instructs judges to consider the traditional
 purposes of punishment when ascribing sentences, very
 rarely did these concepts or purposes find expression in
 sentencing opinions. (95)


And, finally, even if sentencing courts undertook to provide more information on sentencing purposes, it is doubtful that the Commission, Congress, or the public as a practical matter would be able to synthesize the substantive philosophies behind the vast number of sentencing decisions that are issued in the federal district courts. (96) Robust appellate review of sentences, especially review of the weight of the [section] 3553(a) factors, thus provides a more transparent way to communicate judicial practices to the Commission and the legislature.

C. Critiques of Robust Appellate Review

There is a significant debate over how far federal appellate courts should go in reviewing the substance of criminal sentencing decisions. A wide body of scholarship opposes robust appellate review of sentencing discretion, proposing instead various tiered systems of appellate review that include more deferential review for sentences within the Guidelines and more robust review for sentences that significantly depart from them. (97) Some have gone even further, seeking the elimination of substantive reasonableness review almost entirely. (98) Despite disagreement on the details, these limited-review authors agree on one thing: The courts of appeals should not substitute their judgment for that of the district courts on how to weigh the factors identified in [section] 3553(a). (99)

I have identified three primary bases for the hesitancy to broaden the appellate role to include evaluation of sentencing purposes. (100) I call these the functional, institutional, and normative critiques of robust appellate review.

1. The Institutional Argument

The institutional critique, also called the you-are-there rationale, is that district judges are the best actors to make sentencing decisions due to their extensive experience with sentencing and close contact with the evidence in the cases before them. (101) This argument is frequently cited by both scholars and the Supreme Court to justify deferential appellate review of sentencing decisions. (102)

But recent research provides strong reasons to doubt sentencing judges' dominance over all aspects of the choice of sentence. Indeed, a summary of the psychological research on cognition "casts much doubt on the familiar grounds given by appellate courts for deference." (103) The science shows, for example, that "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." (104) This sort of evidence suggests at a minimum that "justification for deference is not uniformly strong across the board." (105)

2. The Normative Argument

The second critique of robust appellate review, which I call the "normative argument," is that deferential appellate review is necessary in a guidelines regime to prevent over-enforcement of guidelines and to allow trial courts to arrive at individualized sentences. It is generally accepted that trial courts must be able to pick a sentence that is appropriate for each individual defendant, and to do this they need broad discretion at sentencing. (106) Scholars who subscribe to this view often point out that when appellate courts have played a more robust role in curbing sentencing discretion in guidelines regimes, it has led to the opposite result: sentences that are overly harsh, anchored inflexibly within the Guidelines, and inappropriate for particular individuals. (107) Accordingly, to protect individualized sentences and to avoid over-enforcement of the Guidelines, appellate courts must remain mostly bystanders in the sentencing process, limiting their role to review for procedural and legal errors and policing only the most extreme variances from the Guidelines. (108)

3. The Functional Argument

The final argument--the functional argument--maintains that there is no principled way to implement substantive reasonableness review without resorting to re-sentencing at the appellate level. This argument is perhaps best articulated in the assertion that "when judges try to find content for substantive reasonableness analysis, they simply replace the sentencing court's judgment with their own," (109) and the companion recognition that "[i]f discretion is to have any robust meaning, any integrity of meaning, in the sentencing context, there can be no such thing as substantive unreasonableness." (110) Sentencing observers thus do not see how appellate courts can question procedurally proper sentences other than by applying a loose standard like "unless the appellate court would have decided otherwise." (111) For these scholars, appellate review in sentencing is essentially binary: Either we provide district courts with discretion on all aspects of sentencing within procedural and statutory bounds, or the appellate court acts as a second sentencing court.

III. SENTENCE APPEALS IN ENGLAND

The following study of appellate review of sentences in England gives us reasons to question all three of the usual critiques--functional, normative, and institutional--against robust appellate review. As will be demonstrated below, through application of what I call a "mixed deference approach," the Court of Appeal in England reviews sentencing decisions for substantive reasonableness without unwarranted encroachment of sentencing discretion and without over-enforcement of the English Guidelines. Furthermore, by embracing its lawmaking function, the English Court of Appeal works in tandem with the institution that is tasked with developing guidelines--the Sentencing Council for England and Wales--to provide sentencing courts with benchmarks to guide the sentencing decision, while at the same time allowing for the discretion needed in the trial court to reach an individualized sentence.

A. Prior Comparative Work on Sentence Appeals

Before describing the modern sentencing model in England, it is first helpful to summarize the prior comparative work on robust appellate review that is the foundation for my own research. Comparative work on criminal sentencing had its heyday in the 1960s through 1980s when, as one contemporary scholar put it, "Judicial reform [was] in the air." (112) Prior to that time, federal district courts were almost completely unconstrained in their sentencing powers; appellate review was limited to claims of legal error. (113)

In the 1960s and 1970s, however, scholars began to lament the disparate, biased, and discriminatory sentences that marked the criminal justice system at the time. (114) These scholars called for change, offering a diverse array of proposals designed to control sentencing discretion and thereby inject uniformity and fairness into criminal sentencing. One of the popular proposals at the time was to broaden appellate review of criminal sentences with the aim of developing a common law of criminal sentencing principles. (115) These reformists believed that "a regularized, rule-of-law approach to sentencing at the trial court level would provide an intelligible basis for review on appeal," and that "appellate courts, habituated to the task of pronouncing law for jurisdiction-wide application, would contribute thoughtfully to the overall development of a consistent body of sentencing jurisprudence." (116)

However, robust review of criminal sentences was practically unheard of at the time, at least in the federal courts of appeals. Accordingly, scholars searched for outside comparisons, hoping to provide models upon which to base a successful and workable system of appellate review of criminal sentences. It turned out that there were many such models, as numerous foreign jurisdictions--and even a few state jurisdictions--included some aspect of appellate review of sentencing in their criminal justice systems. (117) Studies of several of these jurisdictions began to appear, examining a wide variety of models of appellate review from throughout the world. (118) England provided a particularly valuable comparison because robust appellate review of criminal sentences had been occurring there for decades and thus had been thoroughly tested. Scholars (119) presented detailed accounts of the English system of appellate review of criminal sentences, providing evidence that
 a court exercising appellate jurisdiction over sentences can
 develop a meaningful case law of sentencing, provided that
 it is prepared to take a sufficiently broad view of its
 function and discard the normal approach of an appellate. (120)
 court in seeking only errors or at)uses.


These accounts showed that a common law of sentencing through robust appellate review was a practical reality.

This comparative work also contributed to the wave of overwhelming criticism against those United States jurisdictions that had failed to adopt a system of appellate review of sentences (which, incidentally, was almost all of them). As two scholars studying appellate review of criminal sentences in foreign jurisdictions lamented at the time, "[i]t can be attributable only to chance or ignorance that the American system, which permits no review of judicial choice in sentencing, has not been declared unconstitutional." (121)

As is well known, however, Congress did not choose appellate review as its means of reforming federal sentencing. Instead, it implemented the mandatory Federal Sentencing Guidelines, choosing to opt for consistency in sentencing by mandating specific sentencing outcomes instead of through development of a common law of sentencing, or a consistent sentencing approach. But this mandatory guidelines system "failed to live up to the expectations of reformers," (122) at least in part because "[r]ather than arriving at guidelines to implement all of the purposes of the [Sentencing Reform Act], the Commission emphasized one issue above all others, the problem of sentencing disparity." (123) So long as "one judge was doing the same thing as another," it appeared to matter little which principles their sentences furthered or whether their sentencing choices were indeed correct. (124)

At this point, comparative work took a backseat, as courts and observers spent the next twenty years attempting to grapple with, make sense of, and criticize the new federal mandatory sentencing regime. However, comparative study has enjoyed a resurgence in recent years, as observers turn away from the federal guideline system. (125) Indeed, some scholars have questioned the modern dominance of the federal Guidelines--both as a model for sentencing reform and as a focus of academic research--and have suggested research into the systems used by other jurisdictions to find alternative ways to reform sentencing law and practice. (126)

This prior comparative work provides several important insights about appellate review of criminal sentences, two of which are particularly relevant to this study. First, these studies provide evidence to suggest that the creation of a common law of sentencing through appellate review can have significant benefits. These include, for example, relief from excessive sentences, (127) transparency of sentencing policies enabling "informed public criticism" of the criminal process, (128) and the development of uniform policies of punishment in advance of legislative guidance or expressions of public consensus in the area. (129)

Despite this evidence of promise, these studies also consistently show that appellate review must be designed correctly in order to obtain most of these benefits. First, appellate review must be guided by some standards or principles to actually allow for development of uniform theories of punishment. Studies of jurisdictions where the appellate courts simply resentence the defendant without explanation show that these courts do not contribute to the development of a common law of sentencing in a meaningful way. For example, a much cited 1968 case study of the Connecticut Sentence Review Division concluded that its failure to articulate the specific sentencing principles that formed the basis of its decisions led to that court's failure to contribute to a "field of sentencing." (130) Although the Division had full power to review and revise sentences, it usually merely substituted a different sentence on appeal without linking the new sentence to specific sentencing purposes. (131) As a result, appellate review added little value other than "as a res[t]raint on palpably unreasonable sentencing decisions." (132)

A similar finding appears in a modern study of sentence appeals in the military justice system, which, like the 1968 Connecticut model, includes de novo review of sentences on appeal. (133) But military appellate courts provide limited information or justification for their decisions on whether a sentence is appropriate, despite having a broad authority to review sentencing decisions. (134) Accordingly, appellate courts in the military justice system act as a check only on a case-by-case basis and do not establish a common law of sentencing "appropriateness." (135)

Studies like these tell us that, at the least, a sentencing system must include an articulation of the aims of sentencing that appellate courts can use to develop a sentencing jurisprudence. (136) As one commentator observed of Indiana's robust appellate review model, "the absence of any global substantive framework.., makes it difficult for courts on appeal to perceive when a given sentence deviates from the system wide norm." (137) Accordingly, commentators have long advocated for legislative and judicial articulation of a substantive sentencing framework, including both general statements about the "recognized aims of penal-correctional policy" and offense specific criteria "by which the perpetrator and his deed should be evaluated." (138)

Furthermore, researchers in other jurisdictions have observed that deference to trial courts on issues of sentencing law and policy impedes the development of a common law of sentencing. (139) These studies show that using standards like "clear and convincing evidence" and "reasonable judge" prevent appellate courts from providing meaningful guidance on the meaning of principles of punishment. (140) As a practical matter this means that, to develop uniform criteria of sentencing, appellate courts must review the application of sentencing principles de novo. As one pre-guidelines study of English appellate review put it, "[a] court which will intervene only where there is an abuse of discretion by the trial judge automatically limits its potential contribution to the widest generalities, and probably to the context of procedure." (141) To "have sufficient scope to deal with the fundamental issues of penal philosophy which are the basic problems of sentencing in a modern system," a court of appeal "must be prepared to discard [this] narrow approach ... in favor of a view." (142) Furthermore, courts of appeals must affirmatively articulate the sentencing policies that guide their decisions on review in order for those policies to develop into a common law of sentencing. (143) In sum, we have known for more than fifty years that if appellate courts are not willing to "assume[] the role of an affirmative policy-maker," there will be no "generally applicable sentencing criteria" for the lower courts to apply. (144)

These observations together provide some evidence of the elements necessary to ensure successful implementation of sentencing policy through robust appellate review. They are also critical to consider as part of any modern effort to revise the appellate function after Booker.

B. The Role of the Appellate Court in England

The modern appellate court plays a significant role in the English criminal sentencing system, as it performs both broad enforcement and lawmaking functions. Regarding enforcement, the Court of Appeal in England is responsible for ensuring that sentencing decisions comply with the law, including the sentencing guidelines. In this way, the Court of Appeal's role is similar to that of the enforcement role of federal appellate courts--to ensure guidelines compliance. But the Court of Appeal in England also performs a significant lawmaking function that goes far beyond that of the federal courts of appeals. From its creation in 1907 until the late 1990s, the Court of Appeal in England shaped much of the law and policy of sentencing through common law review of trial court sentencing decisions. Although the Court of Appeal now shares its lawmaking function with an independent sentencing commission, called the Sentencing Council for England and Wales (the "Sentencing Council"), the Court of Appeal has nevertheless retained an important lawmaking role. In sharp contrast to most appellate courts in the United States, the post guidelines English Court of Appeal has embraced the opportunity to help shape sentencing law and policy by continuing its common law review of sentencing policy, at the same time as taking on the duty to enforce the guidelines.

1. The Basic Structure of Sentencing in England

The sentencing system in England is, in many ways, strikingly similar to the post-Booker federal sentencing system. (145) Like the practice in the federal courts of appeals, the English system is characterized by: (1) a legislature that sets mandatory minimums and maximums and general sentencing policies, (2) an independent sentencing body (the Sentencing Council for England and Wales) that is responsible for developing and issuing guidelines, and (3) an appellate court, the Court of Appeal-Criminal Division, which reviews the sentencing decisions of the trial courts.

Legislative guidance on sentencing policy is fairly limited, and is roughly equivalent to the guidance provided by Congress to the federal courts of appeals. As one commentator explains, "[t]he role of legislation as a source of English sentencing law has.., largely been one of providing powers and setting outer limits to their use." (146) Just as Congress has authorized the establishment of sentencing ranges for use in the federal courts, Parliament has established sentencing ranges for each crime, sometimes including mandatory minimums. (147) It has also enacted statutory provisions articulating principles of sentencing meant to provide general guidance to the courts in making sentencing decisions. (148) For example, [section] 152(2) of the Criminal Justice Act of 2003 provides that
 [t]he court must not pass a custodial sentence unless it is of
 the opinion that the offence, or the combination of the
 offence and one or more offences associated with it, was so
 serious that neither a fine alone nor a community sentence
 can be justified for the offence. (149)


And Parliament has also provided that, where a custodial sentence is imposed, it must be "for the shortest term.., that in the opinion of the court is commensurate with the seriousness of the offence." (150) Through provisions like these, Parliament has established a general policy in favor of non-prison alternatives, parsimony, and proportionality. (151)

Parliament has also articulated five "purposes of sentencing" that a sentencing court must consider in imposing sentence. (152) These are the punishment of offenders, ... the reduction of crime (including its reduction by deterrence), ... the reform and rehabilitation of offenders, ... the protection of the public, ... and the making of reparation by offenders to persons affected by their offences." (153) But like Congress in the United States, Parliament has historically delegated the task of developing further sentencing policy to other institutions, first to the Court of Appeal and later to both the Court of Appeal and the Sentencing Council. I describe these two institutions next.

A single court hears all appeals of criminal sentences in England and Wales: the Court of Appeal--Criminal Division (the "Court of Appeal," the "Court," or the "Criminal Division"). (154) Hearing appeals of convictions and sentences is the Court of Appeal's only work. (155) Although the Court of Appeal is a single court, it is in fact made up of different panels of at least three Lord Justices of Appeal, pulled from the thirty-seven Justices who sit on the wider Court of Appeal. (156) In addition, various other judges (such as judges of the lower trial courts, known as crown courts) may be asked to sit on Criminal Division appeals. (157) The Lord Chief Justice is president of the Criminal Division, and often issues some of its more important decisions as a way of giving them greater authority. (158)

Another difference between the English appellate system and practice in the federal courts of appeals is the scope of evidence heard on appeal: The Court of Appeal is not limited to the evidence introduced in the trial court. (159) The appellant can request, and the Court of Appeal can order, that additional evidence or witnesses be presented at the hearing. (160) As one observer has noted, appellate review in England is designed to "determine whether at the time the case is before the [Court of Appeal], and on the information then available, the sentence should be affirmed or altered." (161) To achieve this purpose of determining the appropriate sentence at the time of the appeal, it may be seen as necessary that the Court of Appeal be able to hear all evidence relevant to that determination. (162) This approach to the appellate function is in sharp contrast to the approach in most United States jurisdictions, where the review is usually to determine whether the trial judge erred in some way on the information then before her. As the analysis below shows, this difference casts doubt on the ability to transfer one aspect of the English Court of Appeal's review of sentences, namely the ability to modify sentences on appeal, to the federal courts of appeals.

Prior to creation of the Court of Appeal-Criminal Division by the Court of Appeal Act of 1907, there was no right to appellate review of criminal sentences. (163) As one commentator has explained, the Court of Appeal was established to address the concern that judges were sentencing defendants according to wildly diverse sentencing philosophies. (164) In one court, a judge might be emphasizing the cumulative principle, under which a defendant's sentence increases as his criminal history increases, while in another the judge might be sentencing according to a proportionality philosophy. (165) "The solution which was eventually adopted" to address this disparity "was the introduction of appellate review," (166) so that the set of uniform sentencing principles established by the new court would introduce uniformity into the sentencing process. (167)

The jurisdiction and function of the Court of Appeal have changed little since its creation in 1907. The Court of Appeal hears appeals of cases from the crown courts, (168) which preside over jury trials involving the more serious crimes, such as murder, manslaughter, robbery, and rape. (169) The Court of Appeal has broad jurisdiction over sentence appeals. Under section 11(3) of the Criminal Appeal Act of 1968, the Criminal Division may hear an appeal "if they consider that the Appellant should be sentenced differently for an offence for which he was dealt with by the court below." (170) Additionally, on appeal, Criminal Division panels may vary the sentences imposed and substitute their own sentences "as they think appropriate for the case." (171) The only legislative restriction on this power is that, on appeal by the defendant, the Court of Appeal may not impose a sentence that is higher than the sentence originally imposed at trial. (172) However, the Court of Appeal can increase a sentence on appeal by the Government. (173)

The Court of Appeal has not chosen to exercise the full extent of its jurisdiction in the context of sentence review. Instead, over time, it has developed its own standards of review, stating that it will not reverse a sentence unless it is "wrong in principle" or "manifestly excessive." (174) In practical terms, these standards of review lead to three different types of sentencing decisions in England: (1) guidelines judgments, (2) excessive sentence modifications, and (3) policy guidance. Each is described in the following sections.

The Court of Appeal fulfilled its legislative purpose of establishing uniformity of sentencing principles and responding to perceived disparity of sentencing by developing both common law sentencing principles, and, starting in the 1970s, sentencing guidelines. (175) As one sentencing scholar has explained, "[t]his area of judge-made law was a commendable attempt to impose a greater degree of consistency upon an area of law where traditionally there had been wide discretion and divergence of approach." (176)

However, the appellate review system had its problems too. By the 1980s, it became clear that the appellate model for creation of sentencing law and policy had some "inherent disadvantages." (177) Most importantly, the appellate process, which addresses issues on a case-by-case basis, made it difficult to develop "general principles, or aggravating or mitigating factors which might cut across a range of offenses." (178) As two observers pointed out at the time, "[i]t has been clear for some years that English sentencing law lacks any coherent rationale." (179)

To address this problem, in 1998, Parliament established the precursor to the current Sentencing Council, the Sentencing Advisory Panel ("SAP"). As originally conceived, the SAP was something in the nature of a think tank. That is, it was a body of individuals recruited from across the world of criminal sentencing--judges, prosecutors, defense attorneys, and academics--who would research sentencing issues and policies and provide advice and guidance to the Court of Appeal in deciding cases before it. Importantly, the Court of Appeal remained the sole body responsible for issuing, developing, and revising sentencing guidelines. After 1998, though, the SAP advised the Court in this task. (180)

Fairly quickly, however, there was a push to provide the SAP with lawmaking powers, particularly to allow for the development of general guidelines without having to wait for a related appeal, as the Court of Appeal is obliged to do. (181) In response, in 2003, Parliament created the Sentencing Guidelines Council ("SGC"), which now had the power to "create guidelines across a wide range of issues that are relevant to sentencing." (182) The SAP remained in existence after the 2003 Act, studying sentencing policy and providing advice to the SGC, not the Court of Appeal. In 2009, Parliament essentially combined the functions of the SGC and the SAP into one body, the Sentencing Council for England and Wales (the "Sentencing Council"), which exists today. (183) Sentencing guidelines issued either by SGC before 2003 or the Sentencing Council after 2003 are called "Definitive Sentencing Guidelines." (184)

Finally, unlike the United States Sentencing Commission, the Sentencing Council does not have exclusive jurisdiction to develop sentencing guidelines and policy guidance. Parliament has re-affirmed the Court of Appeal's lawmaking power, specifying that the creation of the Sentencing Council did not abrogate the power of the Court of Appeal to "provide guidance relating to the sentencing of offenders in a judgment of the court." (185) The Court of Appeal thus continues to enforce, review, and revise its old sentencing guidelines and develop new guidelines as needed. It also issues decisions interpreting the Sentencing Council's Definitive Guidelines, both broadly and as applied in specific cases. Finally, as always, the Court of Appeal provides guidance on general sentencing principles.

The result is that, in the English system, the Sentencing Council and the Court of Appeal work in tandem to develop and issue sentencing policy. As the Court of Appeal has itself said, "[t]he relationship between this court and the Sentencing Council proceeds on the basis of mutual respect and comity." (186) For example, when issuing a new Definitive Guideline on an issue where the Court of Appeal has already ruled, the Council has gone out of its way to acknowledge, study, and respond to the Court of Appeal's reasoning on the issue. (187) Conversely, the Court of Appeal usually defers to the Council's judgments on guideline issues and deviates from Definitive Guidelines when compelled to by new facts, new law, or some indication of error in application of established sentencing principles. (188) Furthermore, the Court of Appeal acknowledges the Council's contemplation of guidelines in particular instances and is careful to note the temporary nature of its own guidelines in the meantime. (189) This kind of respectful acknowledgment of the other's expertise and judgment by each institution is necessary to avoid the confusion that would inevitably result from conflicting guidance on the same issue. (190)

On the other hand, it appears just as important that these two institutions do not each completely delegate the role of developing sentencing policy to the other. Both institutions develop sentencing policy, the Court of Appeal through review of the cases that come before it, and the Sentencing Council through study and consultation. The Court of Appeal has been quite careful to retain its power to review sentences for incorrect sentencing principles, regardless of whether the error occurs because of the independent judgment of the sentencing court or the application of the Council's Definitive Guidelines. Indeed, the success of the system appears to lie just as much in the willingness of the actors to question each other as in the respect they provide.
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Title Annotation: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
Author:Rosenbaum, Briana Lynn
Publication:Journal of Appellate Practice and Process
Date:Mar 22, 2013
Words:9275
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