Sentencing guideline systems and sentence appeals: A comparison of federal and state experiences

Northwestern University Law Review

Volumn 91, Issue 4, 1997, Pages 1441-1505

  Reitz, Kevin R ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040930685     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. 1 18 U.S.C. §§ 3551-3673; 28 U.S.C. §§ 991-998 (1994).
2. See 18 U.S.C. § 3742 (1994) ("Review of a Sentence").
3. In Parts III and IV of this Article, the practices of appellate review in five such guideline states are considered. However, it should be noted that a minority of states, including Delaware, Virginia, and Wisconsin, have instituted sentencing guidelines without providing for appellate review of guideline sentences. In such systems, compliance with the guidelines by trial courts is effectively voluntary. See MICHAEL TONRY, SENTENCING MATTERS 27-28 (1996). The focus of this Article is to study guideline jurisdictions that have included the appellate bench as a systemic player in the new sentencing structure.
4. "Indeterminate" sentencing systems, which date back to the late nineteenth century, are those in which the sentencing judge and parole board have broad discretion to set penalties for convicted offenders. Typically, their discretion is not channeled by rules of decision and is not subject to review. "Determinate" sentencing systems, which began to appear in the 1970s, seek to limit judicial sentencing discretion through the creation of uniform rules, usually in the form sentencing guidelines or statutes. Often, determinate systems also have limited or abolished the discretion of parole boards to decide when inmates should be released. TONRY, supra note 3, at 4, 9-10.
5. See Kay A. Knapp & Denis Hauptly, State and Federal Sentencing Guidelines: Apples and Oranges, 25 U.C. DAVIS L. REV. 679, 688-89 & n.30 (1992).
6. See Kevin R. Reitz, Sentencing Reform in the States: An Overview of the Colorado Law Review Symposium, 64 U. COLO. L. REV. 645, 645-46 (1993).
7. 7See Richard S. Frase, State Sentencing Guidelines: Still Going Strong, 78 JUDICATURE 173, 174 tbl.1 (1995).
8. The right to take an appeal of any kind in a criminal case is of relatively recent vintage in Anglo-American law. See Ross v. Moffitt, 417 U.S. 600, 606 (1974) (holding that no constitutional right to appellate review exists in criminal case); McKane v. Durston, 153 U.S. 684, 687-88 (1894) (same). See also LESTER BERNHARDT ORFIELD, CRIMINAL APPEALS IN AMERICA 215-16 (1939) ("There was no right of appeal in criminal cases in Delaware until 1897. There was none in Louisiana from 1812 to 1843. In Georgia a supreme court was set up only in 1846.") (footnotes omitted). England's modern practice of criminal appeals was not instituted until the Criminal Appeal Act of 1907. Id. at 14, 285-86. See also Comment, Appellate Modification of Excessive Sentence, 46 IOWA L. REV. 159, 159-60 (1960) ("The federal and majority state rule which precludes appellate modification of seemingly excessive sentences within statutory limits seems to be a vestige of the early common-law doctrine denying any judicial review as of right in criminal cases.") (footnotes omitted).
9. See, e.g., Solem v. Helm, 463 U.S. 277 (1983), overruled in part by Harmelin v. Michigan, 501 U.S. 957 (1991).
10. See, e.g., Williams v. New York, 337 U.S. 241 (1949).
11. See MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 76 (1973). In addition to constitutional claims, observers sometimes concluded that appellate courts, if sufficiently offended by the sentence in a particular case, would stretch to find technical, nonsentence errors at trial that could supply pretextual grounds for reversal. See id. at 82.
12. See AMERICAN LAW INSTITUTE, CODE OF CRIMINAL PROCEDURE 1300-02 (Official Draft, 1930) (noting that only nine states had statutory provisions authorizing appellate courts to "modify or correct the sentence"). A survey in the late 1960s found that "[s]tatutory authority to review sentences has been specifically granted, in one form or another, in thirteen states and in the military courts." AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES 14 (1st ed. 1969) [hereinafter ABA APPELLATE REVIEW STANDARDS (1st ed.)]. In addition, the appellate courts in a small number of states had occasionally assumed the power of review in the absence of statutory authorization, Id.; see also Gerhard O.W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 VAND. L. REV. 671, 677 (1962) ("[O]nly fifteen American jurisdictions (and England) have either specific statutes authorizing modification of a legal, but excessive sentence, or precedents establishing such a procedure.").
13. See AMERICAN LAW INSTITUTE, CODE OF CRIMINAL PROCEDURE 1300-02 (Official Draft, 1930) (noting that only nine states had statutory provisions authorizing appellate courts to "modify or correct the sentence"). A survey in the late 1960s found that "[s]tatutory authority to review sentences has been specifically granted, in one form or another, in thirteen states and in the military courts." AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES 14 (1st ed. 1969) [hereinafter ABA APPELLATE REVIEW STANDARDS (1st ed.)]. In addition, the appellate courts in a small number of states had occasionally assumed the power of review in the absence of statutory authorization, Id.; see also Gerhard O.W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 VAND. L. REV. 671, 677 (1962) ("[O]nly fifteen American jurisdictions (and England) have either specific statutes authorizing modification of a legal, but excessive sentence, or precedents establishing such a procedure.").
14. See AMERICAN LAW INSTITUTE, CODE OF CRIMINAL PROCEDURE 1300-02 (Official Draft, 1930) (noting that only nine states had statutory provisions authorizing appellate courts to "modify or correct the sentence"). A survey in the late 1960s found that "[s]tatutory authority to review sentences has been specifically granted, in one form or another, in thirteen states and in the military courts." AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES 14 (1st ed. 1969) [hereinafter ABA APPELLATE REVIEW STANDARDS (1st ed.)]. In addition, the appellate courts in a small number of states had occasionally assumed the power of review in the absence of statutory authorization, Id.; see also Gerhard O.W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 VAND. L. REV. 671, 677 (1962) ("[O]nly fifteen American jurisdictions (and England) have either specific statutes authorizing modification of a legal, but excessive sentence, or precedents establishing such a procedure.").
15. See AMERICAN LAW INSTITUTE, CODE OF CRIMINAL PROCEDURE 1300-02 (Official Draft, 1930) (noting that only nine states had statutory provisions authorizing appellate courts to "modify or correct the sentence"). A survey in the late 1960s found that "[s]tatutory authority to review sentences has been specifically granted, in one form or another, in thirteen states and in the military courts." AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES 14 (1st ed. 1969) [hereinafter ABA APPELLATE REVIEW STANDARDS (1st ed.)]. In addition, the appellate courts in a small number of states had occasionally assumed the power of review in the absence of statutory authorization, Id.; see also Gerhard O.W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 VAND. L. REV. 671, 677 (1962) ("[O]nly fifteen American jurisdictions (and England) have either specific statutes authorizing modification of a legal, but excessive sentence, or precedents establishing such a procedure.").
16. See Dorszynski v. United States, 418 U.S. 424, 431 (1974); Gore v. United States, 357 U.S. 386, 393 (1958) (concluding that the Court had no power to review "the proper apportionment of punishment"); Smith v. United States, 273 F.2d 462, 467-68 (10th Cir. 1959), cert. denied, 363 U.S. 846 (1960); United States v. Rosenberg, 195 F.2d 583, 606-07 (2d Cir.), cert. denied, 344 U.S. 838 (1952); Gurera v. United States, 40 F.2d 338, 340-41 (8th Cir. 1930); Freeman v. United States, 243 F. 353, 357 (9th Cir. 1917), cert. denied, 249 U.S. 600 (1919); Jackson v. United States, 102 F. 473, 487-89 (9th Cir. 1900).
17. See Charles B. Burr, II, Appellate Review as a Means of Controlling Criminal Sentencing Discretion - A Workable Alternative?, 33 U. PITT. L. REV. 1, 14 (1971) ("Despite the existence of this statute [setting up a procedure for review of sentences by state trial courts], there have been relatively few sentence modifications in Connecticut since its enactment."); Ronald M. Labbe, Appellate Review of Sentences: Penology on the Judicial Doorstep, 68 J. CRIM. L. & CRIMINOLOGY 122, 128 (1977) ("[M]ost appellate courts in the United States - and particularly those that do not specialize in the review of sentences - are prone to treat the sentence of the trial court as being prima facie valid and unreviewable, unless a clear abuse of discretion can be shown."); Mueller, supra note 12, at 676 ("Of course, courts which were given the power of sentence review exercised it sparingly . . . only in cases of clear abuse of discretion on the part of the trial judge."); see also ORFIELD, supra note 8, at 109-10.
18. See Charles B. Burr, II, Appellate Review as a Means of Controlling Criminal Sentencing Discretion - A Workable Alternative?, 33 U. PITT. L. REV. 1, 14 (1971) ("Despite the existence of this statute [setting up a procedure for review of sentences by state trial courts], there have been relatively few sentence modifications in Connecticut since its enactment."); Ronald M. Labbe, Appellate Review of Sentences: Penology on the Judicial Doorstep, 68 J. CRIM. L. & CRIMINOLOGY 122, 128 (1977) ("[M]ost appellate courts in the United States - and particularly those that do not specialize in the review of sentences - are prone to treat the sentence of the trial court as being prima facie valid and unreviewable, unless a clear abuse of discretion can be shown."); Mueller, supra note 12, at 676 ("Of course, courts which were given the power of sentence review exercised it sparingly . . . only in cases of clear abuse of discretion on the part of the trial judge."); see also ORFIELD, supra note 8, at 109-10.
19. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, at 50 ("Instances in which careful opinions have been written for this purpose are rare though not unknown."); Livingston Hall, Reduction of Criminal Sentences on Appeal: I, 37 COLUM. L. REV. 521, 529 (1937) ("Rarely, however, does a court make a conscious choice, demonstrable from its opinions, as to which theory to apply in a given case. The opinions usually list certain factors regarded as matters of aggravation or mitigation in the particular case, and conclude with the judgment that these factors compel a given result.").
20. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, at 50 ("Instances in which careful opinions have been written for this purpose are rare though not unknown."); Livingston Hall, Reduction of Criminal Sentences on Appeal: I, 37 COLUM. L. REV. 521, 529 (1937) ("Rarely, however, does a court make a conscious choice, demonstrable from its opinions, as to which theory to apply in a given case. The opinions usually list certain factors regarded as matters of aggravation or mitigation in the particular case, and conclude with the judgment that these factors compel a given result.").
21. See ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 26-31 (2d ed. 1995) (outlining effects of appellate review on English sentencing system); D.A. THOMAS, PRINCIPLES OF SENTENCING (2d ed. 1979) (same). A study of the English system of appellate review was commissioned by the ABA in connection with its first edition of standards for appellate sentence review, and was influential in the drafting of those standards. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, App. C at 94-157 ("The Review of Criminal Sentences in England").
22. See ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 26-31 (2d ed. 1995) (outlining effects of appellate review on English sentencing system); D.A. THOMAS, PRINCIPLES OF SENTENCING (2d ed. 1979) (same). A study of the English system of appellate review was commissioned by the ABA in connection with its first edition of standards for appellate sentence review, and was influential in the drafting of those standards. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, App. C at 94-157 ("The Review of Criminal Sentences in England").
23. See ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 26-31 (2d ed. 1995) (outlining effects of appellate review on English sentencing system); D.A. THOMAS, PRINCIPLES OF SENTENCING (2d ed. 1979) (same). A study of the English system of appellate review was commissioned by the ABA in connection with its first edition of standards for appellate sentence review, and was influential in the drafting of those standards. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, App. C at 94-157 ("The Review of Criminal Sentences in England").
24. Labbe, supra note 14, at 128, 133 (stating that where sentence review exists, appellate courts have not taken the opportunity "to set sentencing policy or to develop a body of precedent. . . . As a result, lower courts are not furnished with precedents useful in formulating sentences."); Mueller, supra note 12, at 676 ("Those who had hoped that the introduction of the appellate sentence review power would develop systems of jurisdiction-wide sentencing policies or even penological theories and practices were utterly disappointed.").
25. President Johnson's Crime Commission, for example, recommended that appellate review of sentencing should be widely instituted in the United States but recognized also that, as a predicate for such action, principled standards for sentencing decisions would have to be developed. PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 145-46 (1967) [hereinafter THE CHALLENGE OF CRIME IN A FREE SOCIETY].
26. See Gurera v. United States, 40 F.2d 338, 340-41 (8th Cir. 1930) ("If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute."); Thomas William Watkins, Appellate Review of the Sentencing Process in Michigan, 36 U. DET. L.J. 356, 356 (1959) ("If the sentence as imposed is within the statutorily prescribed limits such review is non-existent.") (footnote omitted). Because legislatures tend to write high statutory maxima into the criminal code - to take account of the worst possible offense within each classification - the limitation placed on judicial discretion by the code itself is seldom confining.
27. See Williams v. New York, 337 U.S. 241, 247 (1949) ("A sentencing judge . . . is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant - if not essential - to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.").
28. This situation was not aided by the fact that, even in those jurisdictions that authorized sentence review by statute, no criteria for the review decision were spelled out in the relevant provisions. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, app. A at 67-85 (reprinting statutory provisions granting power of sentence review).
29. See Mueller, supra note 12, at 675 ("Trial courts were (and still are) not in the habit of assigning specific reasons for the particular sentence they impose."); see also ORFIELD, supra note 8, at 112 ("[I]n most states, such an opinion is never written or delivered, or at any rate is not made available to the appellate court.").
30. FRANKEL, supra note 11, at 42.
31. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12. at 5 (stating that one of two "major objections" to sentence review is that "permitting review of the sentence would inundate appellate courts with frivolous appeals"); FRANKEL, supra note 11, at 78. Judge Henry Friendly famously predicted that appellate sentence review "would administer the 'coup de grace' to the [federal] courts of appeals as we know them." HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 36 (1973).
32. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12. at 5 (stating that one of two "major objections" to sentence review is that "permitting review of the sentence would inundate appellate courts with frivolous appeals"); FRANKEL, supra note 11, at 78. Judge Henry Friendly famously predicted that appellate sentence review "would administer the 'coup de grace' to the [federal] courts of appeals as we know them." HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 36 (1973).
33. FRANKEL, supra note 11, at 77-78 (commenting on this convergence of interests).
34. See Simon E. Sobeloff, A Recommendation for Appellate Review of Criminal Sentences, 21 BROOKLYN L. REV. 2 (1955); Appellate Review of Sentences, A Symposium at the Judicial Conference of the United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 272-75 (1962) (remarks of Judge Simon E. Sobeloff). Sobeloff was also chair of the committee that produced the first edition of the ABA's Criminal Justice Standards on appellate sentence review. See supra note 12.
35. See Simon E. Sobeloff, A Recommendation for Appellate Review of Criminal Sentences, 21 BROOKLYN L. REV. 2 (1955); Appellate Review of Sentences, A Symposium at the Judicial Conference of the United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 272-75 (1962) (remarks of Judge Simon E. Sobeloff). Sobeloff was also chair of the committee that produced the first edition of the ABA's Criminal Justice Standards on appellate sentence review. See supra note 12.
36. ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, at 3 ("As a matter of principle, the Advisory Committee is convinced that review of the sentence should be available in every case in which review of a trial leading to conviction would be available.").
37. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, at 51; AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, APPELLATE REVIEW OF SENTENCES 20-25 (2d ed. 1978) [hereinafter ABA APPELLATE REVIEW STANDARDS (2d ed.)].
38. See ABA APPELLATE REVIEW STANDARDS (1st ed.), supra note 12, at 51; AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, APPELLATE REVIEW OF SENTENCES 20-25 (2d ed. 1978) [hereinafter ABA APPELLATE REVIEW STANDARDS (2d ed.)].
39. THE CHALLENGE OF CRIME IN A FREE SOCIETY, supra note 18, at 145-46.
40. LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS: COURTS, Standards 5.1, 6.1 (1973).
41. Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 50-54 (1972); see also FRANKEL, supra note 11, at 118-24.
42. See also KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 133-41 (1969).
43. FRANKEL, supra note 11, at 3 (translated: "no punishment, except as a law prescribes it").
44. See TONRY, supra note 3, at 25-26; see also Frase, supra note 7, at 173-74.
45. See FRANKEL, supra note 11, at 84-85; Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 YALE L.J. 2043, 2050 (1992).
46. Norval Morris, Towards Principled Sentencing, 37 MD. L. REV. 267, 284 (1977); see also Norval Morris, Punishment, Desert and Rehabilitation, in U.S. DEPARTMENT OF JUSTICE, EQUAL JUSTICE UNDER LAW 137, 164-65 (1976) ("Principled sentencing lies at the heart of an effective criminal justice system; it is obvious that it deserves our best intelligence and that means reasons given, critical appellate review of those reasons, critical public consideration of those reasons, a system of precedent leading to principled justice under law.").
47. Norval Morris, Towards Principled Sentencing, 37 MD. L. REV. 267, 284 (1977); see also Norval Morris, Punishment, Desert and Rehabilitation, in U.S. DEPARTMENT OF JUSTICE, EQUAL JUSTICE UNDER LAW 137, 164-65 (1976) ("Principled sentencing lies at the heart of an effective criminal justice system; it is obvious that it deserves our best intelligence and that means reasons given, critical appellate review of those reasons, critical public consideration of those reasons, a system of precedent leading to principled justice under law.").
48. See Peter A. Ozanne, Judicial Review: A Case for Sentencing Guidelines and Just Deserts, in SENTENCING REFORM: EXPERIMENTS IN REDUCING DISPARITY 177, 188 (Martin L. Forst ed., 1982) ("Judicial sentence review, as a means of assuring fair and accurate individual sentencing decisions and as a check on the discretion exercised by administrators in making rules, is a natural ingredient in a sentencing guidelines system. Furthermore, because of the nature of sentencing guidelines, the traditional obstacles to substantive sentence review can be substantially reduced, if not eliminated."); Hans Zeisel & Shari S. Diamond, Search for Sentencing Equity: Sentence Review in Massachusetts and Connecticut, 1977 AM. B. FOUND. RES. J. 883, 934-36 (stating the authors' beliefs that sentencing guidelines are necessary to effectuate meaningful sentence review; merely requiring trial judges to state reasons for sentence is not enough).
49. See Peter A. Ozanne, Judicial Review: A Case for Sentencing Guidelines and Just Deserts, in SENTENCING REFORM: EXPERIMENTS IN REDUCING DISPARITY 177, 188 (Martin L. Forst ed., 1982) ("Judicial sentence review, as a means of assuring fair and accurate individual sentencing decisions and as a check on the discretion exercised by administrators in making rules, is a natural ingredient in a sentencing guidelines system. Furthermore, because of the nature of sentencing guidelines, the traditional obstacles to substantive sentence review can be substantially reduced, if not eliminated."); Hans Zeisel & Shari S. Diamond, Search for Sentencing Equity: Sentence Review in Massachusetts and Connecticut, 1977 AM. B. FOUND. RES. J. 883, 934-36 (stating the authors' beliefs that sentencing guidelines are necessary to effectuate meaningful sentence review; merely requiring trial judges to state reasons for sentence is not enough).
50. NATIONAL CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, MODEL SENTENCING AND CORRECTIONS ACT § 3-208 cmt. at 166 (1979).
51. See infra text accompanying notes 53-55 and 86-87.
52. NATIONAL CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, MODEL SENTENCING AND CORRECTIONS ACT § 3-208 cmt. at 166.
53. Morris, Punishment, Desert and Rehabilitation, supra note 36, at 164-65.
54. Ozanne, supra note 37, at 188; see also NATIONAL CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, MODEL SENTENCING AND CORRECTIONS ACT § 3-208 cmt. at 166.
55. See Michael Tonry & John C. Coffee, Jr., Enforcing Sentencing Guidelines: Plea Bargaining and Review Mechanisms, in ANDREW VON HIRSCH ET AL., THE SENTENCING COMMISSION AND ITS GUIDELINES 142 (1987).
56. See, e.g., Commonwealth v. Canfield, 639 A.2d 46, 51-52 (Pa. Super. Ct. 1994) ("[W]e strenuously caution the trial court that, in the future, prior to sentencing a defendant outside the guidelines, it would do well to specifically articulate the guideline range of sentences and its precise reasons for deviating therefrom on the record."); Beamon v. State, 364 N.W.2d 858, 860 (Minn. Ct. App. 1985) (aggravated departure could not be sustained where trial court had "failed to cite any aggravating factors which would justify a durational departure").
57. For one relevant study, see Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 STAN. L. REV. 523, 535-41 (1993) (survey of state guideline systems that exclude offense-related facts at sentencing when based on criminal offenses of which the defendant has not been convicted).
58. See ABA STANDARDS FOR CRIMINAL JUSTICE SENTENCING, Standard 18-3.1 & commentary (3d ed. 1994) [hereinafter ABA SENTENCING STANDARDS].
59. The interaction between such legal standards in three jurisdictions will be explored in Part III, infra. 48 Professor Freed advocates such "administrative" judicial review in the federal system. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentences, 101 YALE L.J. 1681, 1730-40 (1992). For a detailed discussion of the prospect of judicial review of the guidelines themselves, see Ronald F. Wright, Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission, 79 CAL. L. REV. 1, 40-47 (1991).
60. The interaction between such legal standards in three jurisdictions will be explored in Part III, infra. 48 Professor Freed advocates such "administrative" judicial review in the federal system. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentences, 101 YALE L.J. 1681, 1730-40 (1992). For a detailed discussion of the prospect of judicial review of the guidelines themselves, see Ronald F. Wright, Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission, 79 CAL. L. REV. 1, 40-47 (1991).
61. See Edward R. Becker, Insuring Reliable Fact Finding in Guidelines Sentencing: Must the Guarantees of the Confrontation and Due Process Clauses Be Applied?, 22 CAP. U. L. REV. 1 (1993) (urging federal district court judges to exercise their discretion to give procedural protections to defendants in sentencing hearings); Susan N. Herman, The Tail That Wagged the Dog: Bifurcated Fact-Finding Under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S. CAL. L. REV. 289 (1992) (same).
62. See Edward R. Becker, Insuring Reliable Fact Finding in Guidelines Sentencing: Must the Guarantees of the Confrontation and Due Process Clauses Be Applied?, 22 CAP. U. L. REV. 1 (1993) (urging federal district court judges to exercise their discretion to give procedural protections to defendants in sentencing hearings); Susan N. Herman, The Tail That Wagged the Dog: Bifurcated Fact-Finding Under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S. CAL. L. REV. 289 (1992) (same).
63. See State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981); State v. VanZee, 547 N.W.2d 387, 392 (Minn. Ct. App. 1996).
64. The average length of upward departures in Minnesota dropped from 48 months before the decision in State v. Evans to 24 months afterward. DALE G. PARENT, STRUCTURING CRIMINAL SENTENCES: THE EVOLUTION OF MINNESOTA'S SENTENCING GUIDELINES 173 (1988).
65. Frankel, supra note 35, at 2050-51.
66. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); José A. Cabranes, Reforming the Federal Sentencing Guidelines: Appellate Review of Discretionary Sentencing Decisions, 1 HARV. LATINO L. REV. 177, 183 (1994); Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180, 183 (1995); Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833 (1992); Tonry, supra note 3, at 76-77.
67. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); José A. Cabranes, Reforming the Federal Sentencing Guidelines: Appellate Review of Discretionary Sentencing Decisions, 1 HARV. LATINO L. REV. 177, 183 (1994); Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180, 183 (1995); Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833 (1992); Tonry, supra note 3, at 76-77.
68. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); José A. Cabranes, Reforming the Federal Sentencing Guidelines: Appellate Review of Discretionary Sentencing Decisions, 1 HARV. LATINO L. REV. 177, 183 (1994); Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180, 183 (1995); Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833 (1992); Tonry, supra note 3, at 76-77.
69. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); José A. Cabranes, Reforming the Federal Sentencing Guidelines: Appellate Review of Discretionary Sentencing Decisions, 1 HARV. LATINO L. REV. 177, 183 (1994); Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180, 183 (1995); Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833 (1992); Tonry, supra note 3, at 76-77.
70. See Frankel, supra note 35, at 2048, 2050; Donald P. Lay, Rethinking the Guidelines: A Call for Cooperation, 101 YALE L.J. 1755, 1762 (1992); Schulhofer, supra note 53, at 870.
71. Professor Freed put it as follows: Torn between enforcing the unpopular guidelines of an administrative agency that sentences no one and respect for the expertise and the firsthand experience of district judges who sentence everyone, appeals judges seem to have opted in favor of the agency. Unintentionally and perhaps unknowingly, strict appellate rulemaking has failed to balance the distant guidance of a bureaucracy against the detailed responsibility of the individual sentencer. Freed, supra note 48, at 1730.
72. See William W. Wilkins, Sentencing Reform and Appellate Review, 46 WASH. & LEE L. REV. 429, 437-38 (1988).
73. See ABA SENTENCING STANDARDS, supra note 46, at 40-41.
74. As do all sentence review provisions in modern guideline systems, the federal law allows appeals from sentence by both the defendant and government. See 18 U.S.C. § 3742(a)-(b) (1994) ("Appeal by a defendant; Appeal by the Government"). See also MINN. STAT. ANN. § 244.11 (West 1992) ("An appeal to the court of appeals may be taken by the defendant or the state . . . ."); 42 PA. CONS. STAT. ANN. § 9781 (b) (West 1982) ("The defendant or the Commonwealth may file a petition for allowance of appeal . . . ."); ABA SENTENCING STANDARDS, supra note 46, Standard 18-8.3 ("The legislature should authorize appeals from sentence at the initiative of the offender or the prosecution . . . .").
75. Some have argued that § 3742(e)(2) requires the courts of appeals to consider claims that a district court's decision not to depart from the guidelines in some cases can be an "incorrect application of the guidelines." The federal appellate courts, unanimously to my knowledge, have rejected this reading. See, e.g., United States v. Garcia, 919 F.2d 1478, 1480 (10th Cir. 1990). For an argument that sentence review of failures to depart should be available in the federal system, see David N. Yellen, Appellate Review of Refusals to Depart, 1 FED. SENTENCING REP. 264 (1988). See also United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989) (Becker, J., dissenting).
76. (Emphasis added).
77. The last sentence of § 3742(e) provides: The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.
78. 18 U.S.C. § 3742(e)(3)(A), (B) (1994).
79. 18 U.S.C. § 3553(c).
80. As noted earlier, the elementary requirement of a statement of reasons escapes trial court judges with some regularity in guideline systems. See supra text accompanying note 44.
81. See supra text accompanying notes 35-38.
82. 18 U.S.C. § 3553(a)(2)(A).
83. 8 U.S.C. § 3553(a)(2)(B)-(D).
84. 18 U.S.C. § 3553(a) (first sentence) (emphasis added).
85. See Marc Miller, Purposes at Sentencing, 66 S. CAL. L. REV. 413 (1992); see also Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 910-13 (1991).
86. See Marc Miller, Purposes at Sentencing, 66 S. CAL. L. REV. 413 (1992); see also Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 910-13 (1991).
87. Alternatively, the systemic history of § 3742 may suggest that a statutory mandate of even greater force than that in the SRA is necessary to ensure that the appellate bench will take on a substantive lawmaking function. Perhaps Congress was at fault for not shouting or not repeating its intended message.
88. 18 U.S.C. § 3553(b) (emphasis added).
89. Id. (emphasis added).
90. This analysis borrows freely from earlier studies by Albert W. Alschuler, Departures and Plea Agreements Under the Guidelines, 111 F.R.D. 459 (1987); Edward R. Becker, Flexibility and Discretion Available to Sentencing Judges Under the Guidelines Regime, 55 FED. PROBATION, Dec. 1991 at 10; Freed, supra note 48, at 1744-45; and Schulhofer, supra note 53, at 858-65. The forceful arguments of these authors have had an impact on federal appellate court litigation in circuit court decisions such as United States v. Merritt, 988 F.2d 1298 (2d Cir.), cert. denied, 508 U.S. 961 (1993), and United States v. Rivera, 994 F.2d 942 (1st Cir. 1993), and more recently in the Supreme Court's decision in Koon v. United States, 116 S. Ct. 2035 (1996).
91. This analysis borrows freely from earlier studies by Albert W. Alschuler, Departures and Plea Agreements Under the Guidelines, 111 F.R.D. 459 (1987); Edward R. Becker, Flexibility and Discretion Available to Sentencing Judges Under the Guidelines Regime, 55 FED. PROBATION, Dec. 1991 at 10; Freed, supra note 48, at 1744-45; and Schulhofer, supra note 53, at 858-65. The forceful arguments of these authors have had an impact on federal appellate court litigation in circuit court decisions such as United States v. Merritt, 988 F.2d 1298 (2d Cir.), cert. denied, 508 U.S. 961 (1993), and United States v. Rivera, 994 F.2d 942 (1st Cir. 1993), and more recently in the Supreme Court's decision in Koon v. United States, 116 S. Ct. 2035 (1996).
92. U.S. SENTENCING GUIDELINES MANUAL ch. 1 pt. A, at 5 (1995) [hereinafter U.S.S.G.].
93. Id. at 5-6.
94. Id. at 6. Compare the very similar statement in the 1979 MODEL SENTENCING AND CORRECTIONS ACT, which I excerpted to illustrate the reformist image of the appellate court function. See supra note 38 and accompanying text.
95. U.S.S.G. § 5H. For criticisms of these provisions, see TONRY, supra note 3, at 77; Freed, supra note 48, at 1715-18; Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 HARV. L. REV. 1938, 1953-54 (1988); Schulhofer, supra note 53, at 859-61; see also ABA SENTENCING STANDARDS, supra note 46, at 57-58.
96. U.S.S.G. § 5H. For criticisms of these provisions, see TONRY, supra note 3, at 77; Freed, supra note 48, at 1715-18; Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 HARV. L. REV. 1938, 1953-54 (1988); Schulhofer, supra note 53, at 859-61; see also ABA SENTENCING STANDARDS, supra note 46, at 57-58.
97. 78 U.S.S.G. §§ 5H1.1-.11 (emphasis added).
98. Id. § 5H introductory commentary (emphasis added).
99. Id. § 5H1.10.
100. Id. § 5H1.4.
101. Id. § 5H1.12.
102. See United States v. Floyd, 945 F.2d 1096 (9th Cir. 1991) (youthful lack of guidance upheld as basis for mitigated departure), amended by, 956 F.2d 203 (9th Cir. 1992), and overruled by United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993); cf. ABA SENTENCING STANDARDS, supra note 46, Standard 18-3.4(c) (recommending that "circumstances of hardship, deprivation, or handicap" should be available to sentencing courts as mitigating factors).
103. For another example, section 5H.1.4 added the defendant's "[p]hysical condition or appearance, including physique" to those factors "not ordinarily relevant," and thereby restricted United States v. Lara, 905 F.2d 599 (2d Cir. 1990), in which a downward departure was allowed due to the likelihood that a bisexual defendant, who was delicate in appearance, would suffer attacks in prison. See U.S.S.G. § 5H.1 (amended 1991).
104. This, however, is not the only possible reading of Chapter 5. Indeed, the Sentencing Commission took pains to insert language in the chapter recalling the heartland theme of the Introduction. With respect to those factors deemed "not ordinarily relevant," one passage in Chapter 5 seems to recognize a significant role for judicial creativity: An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing. U.S.S.G. § 5K2.0. This sentiment must be collated with the earlier-and seemingly inconsistent - advice that only exceptional cases will warrant departure on such grounds.
105. Frankel, supra note 35, at 2048, 2050.
106. Schulhofer, supra note 53, at 870.
107. See Koon v. United States, 116 S. Ct. 2035, 2046, 2053 (1996) (stating that a district court's decision to depart from the guidelines should be given "substantial deference" on appeal). The Court in Koon noted that, while sentencing uniformity is a primary objective of the guidelines, [i]t has been uniform and consistent in the federal judicial tradition for a sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue. [Consequently,] we do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge. Id. It is possible that this decision will effect important changes in the federal departure jurisprudence, but it is too soon to tell. See generally Koon v. United States: The Supreme Court's Puzzling Ruling on Departures and Discretion, 9 FED. SENTENCING REP., No. 1 (1996) (special issue containing eight articles with divergent opinions on Koon's likely impact). For the purposes of this Article, it is sufficient to treat the pre-Koon period under the federal guidelines as the relevant time frame for the present case study of appellate court behaviors.
108. Schulhofer, supra note 53, at 870. The founding Chairman of the Sentencing Commission likewise portrayed the original plan of the federal guidelines as one of shared commission and judicial discretion. See Wilkins, supra note 56, at 433.
109. Douglas O. Linder, Journeying Through the Valley of Evil, 71 N.C. L. REV. 1111, 1142 (1993).
110. See Albert W. Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for "Fixed" and "Presumptive" Sentencing, 126 U. PA. L. REV. 550 (1978) (forecasting the problem of increased prosecutorial sentencing discretion under determinate sentencing systems).
111. Alschuler, supra note 73, at 469.
112. United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, 493 U.S. 862 (1989). The full standard of review had three parts, including inquiry into (1) the legal adequacy, in kind and degree, of the departure circumstances cited by the district court, (2) the evidentiary sufficiency of the trial court's factfinding that the departure circumstances actually existed, and (3) the reasonableness of the degree of departure as fixed by the district court judge. Id. at 49-50. Only the third prong of the Diaz-Villafane standard bore linguistic resemblance to the "reasonableness" criterion of § 3742(e)(3).
113. 18 U.S.C. § 3742(e)(3) (1996).
114. Diaz-Villafane, 874 F.2d at 49 (emphasis added).
115. See FEDERAL SENTENCING GUIDELINES HANDBOOK: TEXT AND ANALYSIS 694 (Roger W. Haines et al. eds., 1995).
116. In United States v. Dyce, 78 F.3d 610 (D.C. Cir. 1995), amended and reh'g en bane denied, 91 F.3d 1462 (D.C. Cir.), cert. denied, 117 S. Ct. 533 (1996), the court of appeals reversed the district court's downward departure from a five-year prison term to five years of probation conditioned on completion of a two-year residential treatment program and an additional year in a community corrections facility. 91 F.3d at 1465. Dyce, a first offender and single mother of three, was a drug courier or "mule" who pled guilty to one count of conspiracy to possess crack cocaine with intent to distribute. Id. at 1464. In departing downward from the guidelines, the district court had relied in part on the defendant's family circumstances and the collateral effects on her children if she were incarcerated for a lengthy term. See United States v. Dyce, 874 F. Supp. 1, 1 (D.D.C. 1994). On appeal, however, the D.C. Circuit found that Dyce's family responsibilities were not sufficiently "extraordinary" to support a departure, noting that "departures on such a basis should be rare." 91 F.3d at 1466. Judge Wald, dissenting from the denial of rehearing en banc, wrote that, "Talmudic distinctions between ordinary and extraordinary suffering aside, this is a strange kind of jurisprudence for a family-oriented society." Id. at 1475. The district court in Dyce had further grounded its departure on findings that (1) Dyce had no prior record and posed no threat to society, (2) Dyce had expressed remorse for her crime and had given a "full explanation" of the offense, (3) the crime was aberrational compared with Dyce's other behavior, and (4) Dyce had the ability to contribute to society in the future. Id. at 1465. The court of appeals found itself in disagreement with each of these additional rationales for departure, as well. Id. at 1469-71. See also United States v. Barton, 76 F.3d 499, 502-04 (2d Cir. 1996) (reversing downward departure to probation in case concerning a receipt of child pornography; court of appeals overturned district court's findings that the defendant suffered from an "extraordinary" mental or emotional condition justifying departure and that that defendant had made "extraordinary" efforts at rehabilitation); United States v. Webb, 49 F.3d 636, 638-39 (10th Cir.) (reversing downward departure to probation in case concerning possession of marijuana and illegal firearms; court of appeals disagreed with district judge that defendant's family obligations were "extraordinary"; district court had also found that incarceration would have significant adverse effect on defendant who suffered from dysthymia, post-traumatic stress disorder, panic disorder, and personality disorder with paranoid features, but the Tenth Circuit invalidated departure on such grounds because "the trial court did not state how this would be extraordinary compared with other defendants with psychiatric problems who are incarcerated"), cert. denied, 116 S. Ct. 121 (1995); United States v. Goff, 20 F.3d 918, 921 (8th Cir.) (reversing downward departure in money laundering case to reduced prison term; court of appeals could not agree with district court that defendant's obligations to support three young children and disabled wife were sufficiently "extraordinary" to justify departure; likewise, defendant's age of 67 could not support departure from guideline prison sentence of 51 to 63 months), cert. denied, 115 S. Ct. 482 (1994). A number of earlier cases in the same vein are collected in Linder, supra note 90, at 1144-46; Schulhofer, supra note 53, at 863-69.
117. In United States v. Poff, 926 F.2d 588 (7th Cir.) (en bane), cert. denied, 502 U.S. 827 (1991), the majority held that the district court had no authority to reduce a 51 month prison sentence for a defendant who was acknowledged to be mentally ill, who had suffered a history of abuse by her father, and who everyone agreed was a danger to no one. The dissent by Judge Easterbrook, joined by four others including Judge Posner, argued that Poff's long sentence could not be justified on moral or consequential grounds, remarking that "51 months in prison without possibility of parole is a harsh sentence for someone known to be all bark and no bite." Id. at 595. The majority acknowledged that the sentence was "harsh" and of debatable utility, but said that such matters were to be weighed by "Congress and the Sentencing Commission," not the federal judiciary. Id. at 593; see also Dyce, 91 F.3d at 1469 (holding departure improper on grounds that defendant had no prior record and did not pose threat to society; D.C. Circuit found that "the Commission took both of these factors into consideration"); United States v. Miller, 991 F.2d 552, 553 (9th Cir. 1993) (reversing downward departure from prison to probationary sentence following guilty plea for embezzlement; Ninth Circuit held that district court's finding that defendant "has a clean record and poses no threat to the public" were "improper" bases for departure). This line of circuit court case law was approved in the Supreme Court's recent Koon decision, 116 S. Ct. at 2052 ("We further agree with the Court of Appeals that the low likelihood of petitioners' recidivism was not an appropriate basis for departure.").
118. See, e.g., Barton, 76 F.3d at 499, 504 (reversing district court's finding that defendant had made extraordinary efforts at rehabilitation following guilty plea for receipt of child pornography; downward departure from prison sentence to probation was improper); United States v. Garza, 57 F.3d 950, 1995 WL 352548, at *5 (10th Cir. June 13, 1995), opinion withdrawn and appeal dismissed (Sept. 6, 1995) (stating that "post-offense rehabilitation is an improper ground for downward departure below that authorized by the acceptance of responsibility provision, even in extraordinary circumstances"); United States v. Simpson, 7 F.3d 813, 818, 819 (8th Cir. 1993) (reversing downward departure in length of imprisonment based in part on trial judge's finding that defendant had made "remarkable efforts at recovery from his [drug] addiction"; court of appeals held that "post-offense rehabilitative efforts . . . do not warrant departing from the guidelines in the absence of extraordinary circumstances"). For a discussion of additional cases, see Patricia H. Brown, Considering Post-Arrest Rehabilitation of Addicted Offenders Under the Federal Sentencing Guidelines, 10 YALE L. & POL'Y REV. 520 (1992).
119. See, e.g., Poff, 926 F.2d at 593.
120. See 18 U.S.C. § 3553(a) (1996).
121. At least one commentator has applauded this judicial attitude as one of appropriate deference to the policymaking competencies of the legislature and commission. See Gary S. Gildin, Appellate Determinacy: The Sentencing Philosophy of the United State Court of Appeals for the Third Circuit, 40 VILL. L. REV. 577, 610-11, 614-15, 617 (1995) (praising appellate decisions that defer to policy judgments in the Guidelines Manual regarding departure cases; author thinks it appropriate that Third Circuit has not "arrogated the power to define sentencing policy").
122. The intent of the system's designers, within the political context of the legislative history of the SRA, is not always easy to discern. The statute was produced by a coalition of liberal and conservative forces who no doubt had somewhat differing hopes for its operation. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform, 28 WAKE FOREST L. REV. 223 (1993). One strand of intentionality on the part of at least some of the guideline designers was distrust for the way in which the federal judiciary had been exercising its pre-guidelines sentencing discretion. See Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617, 625-30 (1992). For sharply contrasting views on Congress's purposes in drafting the SRA departure provisions, see Judy Clarke & Gerald McFadden, Departures from the Guideline Range: Have We Missed the Boat, or Has the Ship Sunk?, 29 AM. CRIM. L. REV. 919, 927-32 (1992) (arguing that SRA envisions broader departure authority than federal circuit courts have allowed) and Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REV. 299, 318-32 (1996) (arguing that Congress intended to
123. The intent of the system's designers, within the political context of the legislative history of the SRA, is not always easy to discern. The statute was produced by a coalition of liberal and conservative forces who no doubt had somewhat differing hopes for its operation. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform, 28 WAKE FOREST L. REV. 223 (1993). One strand of intentionality on the part of at least some of the guideline designers was distrust for the way in which the federal judiciary had been exercising its pre-guidelines sentencing discretion. See Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617, 625-30 (1992). For sharply contrasting views on Congress's purposes in drafting the SRA departure provisions, see Judy Clarke & Gerald McFadden, Departures from the Guideline Range: Have We Missed the Boat, or Has the Ship Sunk?, 29 AM. CRIM. L. REV. 919, 927-32 (1992) (arguing that SRA envisions broader departure authority than federal circuit courts have allowed) and Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REV. 299, 318-32 (1996) (arguing that Congress intended to impose close limitations on district courts' discretion to depart).
124. The intent of the system's designers, within the political context of the legislative history of the SRA, is not always easy to discern. The statute was produced by a coalition of liberal and conservative forces who no doubt had somewhat differing hopes for its operation. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform, 28 WAKE FOREST L. REV. 223 (1993). One strand of intentionality on the part of at least some of the guideline designers was distrust for the way in which the federal judiciary had been exercising its pre-guidelines sentencing discretion. See Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617, 625-30 (1992). For sharply contrasting views on Congress's purposes in drafting the SRA departure provisions, see Judy Clarke & Gerald McFadden, Departures from the Guideline Range: Have We Missed the Boat, or Has the Ship Sunk?, 29 AM. CRIM. L. REV. 919, 927-32 (1992) (arguing that SRA envisions broader departure authority than federal circuit courts have allowed) and Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REV. 299, 318-32 (1996) (arguing that Congress intended to impose close limitations on district courts' discretion to depart).
125. The intent of the system's designers, within the political context of the legislative history of the SRA, is not always easy to discern. The statute was produced by a coalition of liberal and conservative forces who no doubt had somewhat differing hopes for its operation. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform, 28 WAKE FOREST L. REV. 223 (1993). One strand of intentionality on the part of at least some of the guideline designers was distrust for the way in which the federal judiciary had been exercising its pre-guidelines sentencing discretion. See Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617, 625-30 (1992). For sharply contrasting views on Congress's purposes in drafting the SRA departure provisions, see Judy Clarke & Gerald McFadden, Departures from the Guideline Range: Have We Missed the Boat, or Has the Ship Sunk?, 29 AM. CRIM. L. REV. 919, 927-32 (1992) (arguing that SRA envisions broader departure authority than federal circuit courts have allowed) and Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REV. 299, 318-32 (1996) (arguing that Congress intended to impose close limitations on district courts' discretion to depart).
126. See Gildin, supra note 102, at 610-12, 614-17. For commentary expressing concern that the federal courts of appeals have not been rigorous enough in enforcement of the guidelines, see Steven E. Zipperstein, Certain Uncertainty: Appellate Review and the Sentencing Guidelines, 66 S. CAL. L. REV. 621 (1992).
127. See John C. Dowling, Sentencing Discretion in Pennsylvania: Has the Pendulum Returned to the Trial Judge?, 26 DUQ. L. REV. 925 (1988).
128. See Joseph A. Del Sole, Appellate Review in a Sentencing Guidelines Jurisdiction: The Pennsylvania Experience, 31 DUQ. L. REV. 479, 497-500 (1993) (stating that the Pennsylvania Supreme Court has "clearly made the exercise of trial court discretion virtually unreviewable") (Del Sole is a Pennsylvania Superior Court Judge); Ivan S. DeVoren, Judicial Discretion in Sentencing, 62 TEMPLE L. REV. 729, 729 (1989) (asserting that the Pennsylvania Supreme Court has "circumvent[ed] the legislative goals of eliminating disparity in sentencing and increasing judicial accountability, plunging Pennsylvania back into an era when inconsistency and arbitrariness prevailed").
129. See Joseph A. Del Sole, Appellate Review in a Sentencing Guidelines Jurisdiction: The Pennsylvania Experience, 31 DUQ. L. REV. 479, 497-500 (1993) (stating that the Pennsylvania Supreme Court has "clearly made the exercise of trial court discretion virtually unreviewable") (Del Sole is a Pennsylvania Superior Court Judge); Ivan S. DeVoren, Judicial Discretion in Sentencing, 62 TEMPLE L. REV. 729, 729 (1989) (asserting that the Pennsylvania Supreme Court has "circumvent[ed] the legislative goals of eliminating disparity in sentencing and increasing judicial accountability, plunging Pennsylvania back into an era when inconsistency and arbitrariness prevailed").
130. In fact large numbers of appellate decisions in Pennsylvania emphasize how high the "substantial question" hurdle should be. See infra notes 138-39 and accompanying text.
131. 42 PA. CONS. STAT. ANN. § 9781(c)(1) (West 1996).
132. Id. § 9781(c)(3) (emphasis added).
133. Id. § 9781(c)(2) (emphasis added). Compare the alternative practice in the federal system discussed in note 59, supra.
134. The four factors are: "(1) The nature and circumstances of the offense and the history and characteristics of the defendant. (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission." Id. § 9781(d).
135. Elsewhere, the Pennsylvania Code sets forth general principles to be used by sentencing courts in choosing between a penalty of total confinement and other, non-incarcerative, sanctions. See id. § 9722 (grounds in favor of probation sentence); § 9725 (factors supportive of total confinement sentence); § 9726 (standards concerning the propriety, or impropriety, of imposing a fine as all or part of a sentence).
136. See 18 U.S.C. § 3553(a) (1996).
137. The federal code, it will be recalled, stipulated that the penalty chosen by the federal courts should be "sufficient, but not greater than necessary," to comply with statutory purposes. See supra text accompanying note 68. In Minnesota, as explored later, the authorized purposes of sentencing are to be consulted within a different overarching framework, but a framework nonetheless. See infra text accompanying notes 145, 147 (purposes of sentencing to be considered within parameters of proportionality to offender's current offense and prior convictions).
138. "The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing." 42 PA. CONS. STAT. ANN. § 9721(b) (West 1996) (emphasis added).
139. Id. § 9781(c)(3). See supra text accompanying note 109.
140. 204 PA. CODE §§ 303.10(a) (1994) (aggravated sentence); 303.10(b) (mitigated sentence).
141. Id. § 303.10 (descriptive commentary).
142. See COMMONWEALTH OF PENNSYLVANIA, COMMISSION ON SENTENCING, SENTENCING GUIDELINES IMPLEMENTATION MANUAL 111-12 (4th ed. 1994).
143. Del Sole, supra note 106, at 501.
144. See John H. Kramer & Cynthia Kempinen, History of Pennsylvania Sentencing Reform, 6 FED. SENTENCING REP. 152, 154 (1993) (although stating that "the right of appellate review may be the most important part of the [guidelines] reform," the authors conclude that, under Pennsylvania Supreme Court precedent, "the review of sentences imposed by the trial courts has been very limited"). Kramer and Kempinen are the Executive Director and Senior Associate Director, respectively, of the Pennsylvania Commission on Sentencing.
145. See Commonwealth v. Kostka, 379 A.2d 884, 887-88 (Pa. 1977) (vacating sentences where trial judge failed to make adequate statement of reasons, in light of substantive statutory criteria, for imposing sentence of total confinement); Commonwealth v. Riggins, 377 A.2d 140, 141, 151 (Pa. 1977) (plurality opinion announcing new rule that trial courts must provide a statement of reasons for sentences they impose); Commonwealth v. Martin, 351 A.2d 650, 658 (Pa. 1976) (reversing sentences in six consolidated cases because trial courts had not weighed both the circumstances of the offense and the character of the offender, in light of statutory purposes, before arriving at punishment decisions). All three of these decisions were authored by Justice (later Chief Justice) Samuel J. Roberts.
146. The most important superior court decisions were Commonwealth v. Wicks, 401 A.2d 1223 (Pa. Super. Ct. 1979), and Commonwealth v. Edward, 450 A.2d 15 (Pa. Super. Ct. 1982), both written by Judge Edmund B. Spaeth, Jr. Wicks and Edward worked toward a regularized approach for carrying out the substantive review mandated by the supreme court's rulings in Martin and Kostka. The superior court's approach solidified into a two-step inquiry in Edward: first, the reviewing court would ask whether the sentencing court had conducted adequate factfinding to apprise itself of relevant circumstances about the offense and offender. Second, the appellate court would ask whether the sentencing court had fulfilled what Judge Spaeth called an "application-and-explanation" responsibility: to withstand review, the trial judge was obliged to reference the statutory policies applicable to the case and articulate a rational linkage between those policies, the relevant facts, and the penalty imposed. 450 A.2d at 23-24. A large number of superior court panels continued to apply the Wicks-Edward rules for substantive review well into the 1980s. See, e.g., Commonwealth v. Thomas, 537 A.2d 9, 14 (Pa. Super. Ct. 1988); Commonwealth v. Smith, 489 A.2d 845, 851-52 (Pa. Super. Ct. 1985); Commonwealth v. Royer, 476 A.2d 453, 458 (Pa. Super. Ct. 1984); cf. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (referring to "Wicks and its voluminous progeny").
147. Chief Justice Roberts retired in 1984. Justice Robert N.C. Nix, Jr., who had written dissents from the landmark holdings in Martin and Kostka and had concurred without opinion in Riggins, became Chief Justice in the same year. By the late 1980s, no Justice who had signed the court's opinions in Martin, Riggins, and Kostka remained on the Pennsylvania Supreme Court.
148. Although the philosophy of Wicks and Edward carried most superior court panels, there were notable exceptions. See Commonwealth v. Rooney, 442 A.2d 773 (Pa. Super. Ct. 1982); Commonwealth v. Walton, 433 A.2d 517 (Pa. Super. Ct. 1981); Commonwealth v. Zimmerman, 422 A.2d 1119 (Pa. Super. Ct. 1980). In Rooney, Judge Spaeth, author of Wicks and Edward, found himself in dissent. 442 A.2d at 777-78. Also, in Commonwealth v. Doyle, 418 A.2d 1336 (Pa. Super. Ct. 1979), a concurrence by Judge Gwylin A. Price, Jr. signaled deep disapproval, among some appellate judges, of the sentence review practices emerging in Pennsylvania. He expressed concern about "the increasingly fine web we are spinning around trial courts as regards sentencing procedures," which he viewed as a "super-technical approach." Id. at 1345, 1346. With emphasis, Judge Price offered "a word on the tortured course the majority travels, and that word is 'ridiculous.'" Id. at 1346. There is also evidence of rumblings at the trial court level over the novel and burdensome requirements of appellate-court sentencing decisions. One Pennsylvania trial judge, writing in the late 1980s, remarked that sentencing appeals "have become an area wrought with difficulty and have been the subject of much tension between trial and appellate courts." Dowling, supra note 105, at 930.
149. 546 A.2d 12 (Pa. 1988).
150. Id. at 18.
151. For example, the Devers court declared that "[w]e emphatically reject" the Wicks-Edward line of precedent in the superior court and characterized its present holding as "an effort of legal purification." Id.
152. Id. (quoting Judge Price's statement in Doyle, 418 A.2d at 1346). For effect, the Devers majority made a second reference to this statement in the final sentence of the opinion. 546 A.2d at 19 ("As we recall the words of Judge Price quoted above, we vacate the order of the Superior Court and reinstate the sentence.").
153. More specifically, this requirement was lifted for all cases in which a presentence report had been prepared, which covers nearly all serious cases. Id. at 18 ("A pre-sentence report constitutes the record and speaks for itself."). Although the Devers court did not expressly say so, this holding overruled Riggins. See supra note 122.
154. Id. ("We will presume that the weighing process took place in a meaningful fashion"), The presumption of substantive correctness effectively overruled Martin, Kostka, and the many Wicks-Edward decisions in the superior court. See supra notes 122-23.
155. See supra text accompanying notes 107-11.
156. Commonwealth v. Sessoms, 532 A.2d 775, 780-81 (Pa. 1987); see also id. at 780 ("Most important, the court has no 'duty' to impose a sentence considered appropriate by the Commission. . . . We may say that in directing courts to consider these guidelines, . . . the legislature has done no more than direct that courts take notice of the Commission's work.").
157. See supra text accompanying notes 111, 115-16.
158. The consequence of Sessoms can be appreciated by imagining the systemic effects of an alternative holding. Working with the same statutory language, some superior court panels prior to Sessoms decided that the legislature had intended to imbue the guidelines with a great deal of binding force. See Commonwealth v. Hutchinson, 495 A.2d 956, 958 (Pa. Super. Ct. 1985) (holding that "only in exceptional cases and for sufficient reasons may a court deviate from the guidelines"); Commonwealth v. Fluellen, 497 A.2d 1357, 1359 (Pa. Super. Ct. 1985) (same). The Hutchinson court concluded that the legislature intended "to make sentences more determinate [so that] they will reflect what the sentencing commission and the General Assembly believes is the appropriate sentence in most cases." 495 A.2d at 958. It is fascinating to note that the Hutchinson-Fluellen standard of review, if it had survived, would have been similar to the "extraordinary circumstances" standard so often applied in the federal appellate courts.
159. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).
160. 42 PA. CONS. STAT. ANN. § 9781(b) (West 1996).
161. Tuladziecki, 522 A.2d at 19-20.
162. Post-Tuladziecki Pennsylvania decisions have held that a claim that the trial court's sentence was outside the guidelines does not state a reviewable question, see Commonwealth v. Saranchak, 675 A.2d 268, 277 n.18 (Pa. 1996), cert. denied, 117 S. Ct. 695 (1997), nor does a claim that the sentence was excessive so long as it fell within statutory limits, Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. Ct. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996), nor does a claim that the sentencing court failed to consider a specific factor relevant to punishment, Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. Ct.), appeal denied, 661 A.2d 873 (Pa. 1995), nor does a claim that the trial court gave inappropriate weight to factors it did consider, Commonwealth v. Rose, 641 A.2d 617, 618 (Pa. Super. Ct. 1994).
163. Del Sole, supra note 106, at 504.
164. Richard S. Frase, Sentencing Principles in Theory and Practice, in 22 CRIME AND JUSTICE: A REVIEW OF RESEARCH 363, 398 (Michael Tonry ed., 1997).
165. See generally KAY A. KNAPP, MINNESOTA SENTENCING GUIDELINES AND COMMENTARY ANNOTATED vii (1985 and annual supplements) ("The case law on sentencing that has emerged following guideline implementation has made a significant contribution to the clarity of sentencing standards."); PARENT, supra note 51, at 155-75.
166. See infra text accompanying notes 153-67.
167. This conclusion might be overly generous. MINN. STAT. ANN. § 244.11 (West 1992) states that "[o]n appeal pursuant to this section, the court may review the sentence imposed or stayed [by the district court]". (Emphasis added). The Minnesota appellate courts have not construed this language ("may" rather than "shall") as making their review responsibility discretionary.
168. Id. § 244 app. § II.D (West 1992) ("Departures from the Guidelines").
169. See ABA SENTENCING STANDARDS, supra note 46, Standard 18-4.4(b)(iv) & commentary at 165-66.
170. See MINN. STAT. ANN., § 244 app. § I ("Statement of Purpose and Principles") (guideline stating that, inter alia, "[t]he purpose of the sentencing guidelines is to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender's criminal history"). The guideline further states that "sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence." Id. § I.3. This latter provision, appearing only in the guidelines in Minnesota, is adopted by statute in the federal system. See supra text accompanying note 68.
171. Id. § 244 app. § II.D.2(b)(1), (2).
172. Id. § 244 app. § II.D.2(a)(1), (2), (5).
173. The proscribed considerations, in full, include the offender's race, sex, occupation or impact of sentence on profession or occupation, employment history, employment at the time of offense, employment at time of sentencing, educational attainment, living arrangements at time of offense or sentencing, length of residence, and marital status. See id. § 244 app. §II.D.1(a)-(d). In a final subsection, the same provision states that a departure may not be based on "the exercise of constitutional rights by the defendant during the adjudication process." Id. § 244 app. § II.D.1(e).
174. See id. § 244 app. § II.D.103; Reitz, supra note 45, at 536.
175. See PARENT, supra note 51, at 157-58.
176. See State v. Garcia, 302 N.W.2d 643. 647 (Minn. 1981).
177. Id. at 645, 647 (affirming a departure sentence because sentencing court did not "clearly abuse its discretion").
178. As the Minnesota Supreme Court put it in one decision: It is inaccurate to say that the trial court has broad discretion in deciding whether or not to depart. A more accurate statement is that the trial court has broad discretion to depart only if aggravating or mitigating circumstances are present; if aggravating or mitigating circumstances are not present, the trial court has no discretion to depart. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).
179. See, e.g., State v. Womack, 319 N.W.2d 17, 19-20 (Minn. 1982) (reversing departure sentence based on trial court's conclusion that defendant had committed an offense in addition to the charge of conviction; guidelines bar consideration of nonconviction charges); State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981) (reversing aggravated departure in which the trial court had relied upon doubts about the importance of "regularity and conformity in sentencing" and had expressed disagreement with the guideline sentence as "too lenient"); State v. Herrmann, 479 N.W.2d 724, 729-30 (Minn. Ct. App. 1992) (holding that departure may not be based on a factor already comprehended in offense of conviction; in this case, the trial court improperly relied upon victim's "great bodily harm" in imposing aggravated sentence, even though this was a statutory element of the crime itself).
180. This is a rather large point of difference between the Minnesota and federal systems. Under the leading approach in the federal courts prior to 1996, both the "kind" and "degree" of departure factors were reviewed de novo by most circuit courts. See supra text accompanying notes 95-97.
181. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).
182. Id.; see also State v. Stumm, 312 N.W.2d. 248, 249 (Minn. 1981). Reversals under the Evans rule generally take the form of a modification of the upward departure to the 200% limit permissible for cases of "aggravation" as opposed to "severe aggravation." See, e.g., State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (reducing departure sentence from 240 months to 90 months, which was twice the upper limit of the guideline range of 41 to 45 months); State v. Hubbard, No. C6-911911, 1992 WL 71994, at *2 (Minn. Ct. App. Apr. 14, 1992) (modifying 300 month departure sentence to 268 months, a double departure).
183. State v. Creighton, No. C6-95-1528, 1995 WL 606588, at *2 (Minn. Ct. App. Oct. 17, 1995); State v. Dokken, 487 N.W.2d 914, 918-19 (Minn. Ct. App. 1992).
184. My research reveals only one instance of reversal in such a case: State v. Carter, 424 N.W.2d 821, 824-25 (Minn. Ct. App. 1988). The court of appeals attempted to reverse a downward dispositional departure in one additional case, but the mitigated sentence was reinstated by the supreme court. State v. Mattson, 376 N.W.2d 413 (Minn. 1985).
185. See supra note 150.
186. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (stating that "a defendant's particular amenability to individualized treatment in a probationary setting will justify departure in the form of a stay of execution of a presumptively executed [prison] sentence"); State v. Wright, 310 N.W.2d 461, 463 (Minn. 1981) (upholding downward departure from prison term to community sanctions based on trial court's "belief that the chances that defendant will mend his ways and that society's interests will be safeguarded are better if the probationary treatment approach is followed").
187. Trog, 323 N.W.2d at 31.
188. See State v. Johnson, No. C0-95-472, 1995 WL 311794, at *2 (Minn. Ct. App. May 23, 1995) (affirming downward departure following a guilty plea for cocaine possession in which, inter alia, defendant had completed chemical dependency and aftercare programs on his own and was believed to be "highly motivated for recovery"); see also Creighton, 1995 WL 606588, at *2; State v. Lee, No. C6-94-2216, 1995 WL 46312, at *1 (Minn. Ct. App. Feb. 7, 1995); State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. Ct. App. 1994); Dokken, 487 N.W.2d at 917.
189. See supra notes 98-99.
190. Also on consequential grounds, the Minnesota courts have held that an offender's apparent unamenability to probation may support a departure in the form of a prison sentence when the presumptive sanction does not include incarceration. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981); State v. Park, 305 N.W.2d 775 (Minn. 1981). However, in such cases, the trial court may not impose a prison term that is longer in duration than the term of probation set out in the guidelines. See State v. Herrmann, 479 N.W.2d 724, 729 (Minn. Ct. App. 1992) ("The trial court cannot speculate as to what future offenses appellant might commit in determining the proper length of incarceration."). Thus, incapacitation-oriented policies are given some play in the Minnesota case law, subject to an upper limit in the form of a prohibition of durational departures on such grounds. For an excellent discussion of the mixed retributive and utilitarian features of Minnesota sentencing under the state's guidelines and appellate-court precedent, see Frase, supra note 141.
191. U.S. SENTENCING COMM'N 1995 ANN. REP. 130.
192. See Zeisel & Diamond, supra note 37, at 929; Jimmy J. Williams, Controlling the Judge's Discretion: Appellate Review of Departures Made in Sentencing Guidelines Cases, 17 JUST. SYS. J. 229 (1994).
193. The data from the Sentencing Commission include an incomplete compilation of appellate actions from March 7, 1990 through September 30, 1993, see U.S. SENTENCING COMM'N 1993 ANN. REP. 76-91, and then two single year compilations of statistics for fiscal years 1993-94 and 1994-95, which for the first time were built upon the Commission's efforts to identify every court of appeals decision within the relevant period. U.S. SENTENCING COMM'N 1995 ANN. REP. 130-46; U.S. SENTENCING COMM'N 1994 ANN. REP. 133-50.
194. This does not provide an accurate gauge of how many appeals are taken relative to sentencing decisions. It could be, for a variety of reasons, that appeals are filed that do not proceed to disposition. However, the principal concern of this Article is the impact of appellate decision making on the sentencing system as a whole. It makes sense, given this focus, to count cases that reach a result.
195. U.S. SENTENCING COMM'N 1995 ANN. REP. 132.
196. Id. at 130, 133 tbl.52.
197. Id. at 130; U.S. SENTENCING COMM'N 1994 ANN. REP. 136 tbl.64.
198. This might be explained as part of a long-term trend of increasing numbers of criminal appeals of all kinds in the federal courts of appeals. Between 1987, when the federal guidelines first went into effect, and 1994, the number of criminal appeals filed in the federal system jumped from 5260 to 10,674. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1994, at 501 tbl.5.71 (Kathleen Maguire & Ann L. Pastore eds., 1995). However, the number of such appeals dropped between 1993 and 1994, from 11,862 to 10,674. Id. Thus, at least in the very short term, the rising number of sentence appeal dispositions may have coincided with a decline in the number of criminal appeals overall.
199. Id. at 135; U.S. SENTENCING COMM'N 1995 ANN. REP. 130-31.
200. Most of these cases, 2600 of them, were appeals in which the sole issue was the sentence below. U.S. SENTENCING COMM'N 1995 ANN. REP. 133 tbl.52. An additional 1714 cases involved appeals from sentence and at least one other issue. Id. 178 U.S. SENTENCING COMM'N 1994 ANN. REP. 136 tbl.64.
201. In 1993-94, there were 3923 criminal appeals involving a sentencing issue and 4377 cases involving one or more non-sentencing issues. Id. However, in the following year, the number of sentence appeals rose to 4314, and the number of appeals for all nonsentencing issues declined to 4059. U.S. SENTENCING COMM'N 1995 ANN. REP. 133 tbl.52.
202. U.S. SENTENCING COMM'N 1995 ANN. REP. 137 tbl.53.
203. Id. at 136. The prevalence of remands is not in itself indicative of the impact of the appellate court order. The federal appellate review statute requires remand whenever the court of appeals disagrees with the sentence below. 18 U.S.C. § 3742(f) (1994).
204. Just as importantly, none of the data assembled by the U.S. Sentencing Commission or presented elsewhere in this Article attempt to measure the precedential impact of appellate decisions reversing sentences below. Some decisions, particularly those of the highest appellate court in the jurisdiction, can produce enforcement effects far beyond their particularized rulings in the cases at hand.
205. See U.S. SENTENCING COMM'N 1994 ANN. REP. 141 tbl.65.
206. See U.S. SENTENCING COMM'N 1993 ANN. REP. 183 tbl.73.
207. U.S. SENTENCING COMM'N 1995 ANN. REP. 137-38 tbl.53.
208. Differences in approach among the federal circuits have been exposed, through qualitative reports, in special survey issues of the Federal Sentencing Reporter. See Similarities and Inconsistencies Among the Circuits, 1994-95, 7 FED. SENTENCING REP., No. 5 (1995) (collecting evaluations from eleven circuits); Guideline Departures in the Circuits, 1993-94, 6 FED. SENTENCING REP., No. 5 (1994) (collecting reports from twelve circuits).
209. Differences in approach among the federal circuits have been exposed, through qualitative reports, in special survey issues of the Federal Sentencing Reporter. See Similarities and Inconsistencies Among the Circuits, 1994-95, 7 FED. SENTENCING REP., No. 5 (1995) (collecting evaluations from eleven circuits); Guideline Departures in the Circuits, 1993-94, 6 FED. SENTENCING REP., No. 5 (1994) (collecting reports from twelve circuits).
210. JOY A. CHAPPER & ROGER A. HANSON, NATIONAL CTR. FOR STATE COURTS, UNDERSTANDING REVERSIBLE ERROR IN CRIMINAL APPEALS 8 (1989).
211. See supra text accompanying note 7.
212. The Florida guidelines commission, for lack of budgetary support, does not publish an annual report. The above estimate of total guideline sentences was supplied by John N. Hogenmuller. See Letter from John H. Hogenmuller, Senior Attorney, Florida Office of States Courts Administrator, to Kevin R. Reitz, Associate Professor of Law, University of Colorado (Oct. 10, 1996) (on file with author).
213. See supra text accompanying note 180.
214. The usual short list includes Justice Rabinowitz's analysis in State v. Chancy, 477 P.2d 441 (Alaska 1970), Judge Frankel's opinion in United States v. Bergman, 416 F. Supp. 496 (S.D.N.Y. 1976), and Judge Sweet's effort in United States v. Reich, 661 F. Supp. 371 (S.D.N.Y. 1987).
215. United States v. Marshall, 908 F.2d 1312, 1332 (7th Cir. 1990) (en banc) (Posner, J., dissenting) (raising policy concerns in connection with due process challenge to drug quantity guidelines, while recognizing that guidelines did not permit courts to engage in policy analysis on a subconstitutional level), aff'd sub nom. Chapman v. United States, 111 S. Ct. 1919 (1991); United States v. Jackson, 835 F.2d 1195, 1198-1201 (7th Cir. 1987) (Posner, J., concurring) (acknowledging appellate court's inability to reverse sentence on appeal, but finding it wanting on policy grounds), cert. denied, 484 U.S. 969 (1988).
216. For example, Minnesota's stance that a guideline prison term cannot be lengthened based on predictions of crimes the defendant has not yet committed, see supra note 167, was announced in terse Amdahl opinions. State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (announcing the rule in one three-sentence paragraph); State v. Hagen, 317 N.W.2d 701, 703 (Minn. 1982) (same). Minnesota's doctrine of "amenability to probationary treatment" as a departure ground, see supra notes 163-65, is also the product of Amdahl opinions that are remarkably to-the-point. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Wright, 310 N.W.2d 461, 462-63 (Minn. 1981). I am a particular admirer of Amdahl's decisions in the area of "real-offense sentencing," see supra note 156, although I have been critical of the Minnesota Supreme Court for not sufficiently articulating the rationale for its rulings in that area. See Reitz, supra note 45, at 535-41.
217. United States v. Rivera, 944 F.2d 942 (1st Cir. 1993).
218. This unashamedly old-fashioned view of the collegial efforts that can be shared by the bench and academia is reflected in Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 1835 (1926); Judith S. Kaye, One Judge's View of Academic Law Review Writing, 33 J. LEGAL EDUC. 313 (1989).
219. This unashamedly old-fashioned view of the collegial efforts that can be shared by the bench and academia is reflected in Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 1835 (1926); Judith S. Kaye, One Judge's View of Academic Law Review Writing, 33 J. LEGAL EDUC. 313 (1989).
220. See supra note 34 and accompanying text (more than twenty sentencing commissions now in existence in U.S. jurisdictions).
221. See Reitz, supra note 6.
222. See Steven D. Smith, In Defense of Traditional Legal Scholarship: A Comment on Schlegel, Weisberg, and Dan-Cohen, 63 U. COLO. L. REV. 627 (1992).
223. See U.S. SENTENCING COMM'N 1995 ANN. REP. 144 (noting that appeals from drug sentences and from mandatory minimum sentences occur at significantly higher rates than the rates of imposition of such sentences in district court cases).
224. See generally Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 CAL. L. REV. 1471 (1993).
225. See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909 (1992).
226. See Kevin R. Reitz & Curtis R. Reitz, Building a Sentencing Reform Agenda: The ABA's New Sentencing Standards, 78 JUDICATURE 189, 189-90 (1995).