Appellate Review of Sentences: Reconsidering Deference

Michael O'Hear, Marquette Law School

Abstract

For the past three decades, the national debate on sentencing policy has focused on the strengths and weaknesses of mandatory guidelines, with guidelines proponents arguing that unfettered judicial discretion at sentencing violates rule-of-law values. However, the number of states with mandatory guidelines, never a majority, has been declining in recent years, and even the federal system switched from mandatory to advisory guidelines in 2005. The trend away from mandatory guidelines has prompted renewed interest in the potential for appellate review of sentences to address rule-of-law concerns. But the appellate courts themselves have long resisted robust review on the ground that trial courts have important institutional advantages when it comes to sentencing.

Responding to this claim, the present Essay provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. The standard justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. For instance, the empirical research suggests that the trial courts’ access to demeanor evidence may be less a source of institutional advantage than a cognitive pitfall. Despite the shortcomings of the standard justifications, the Essay suggests a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Essay concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.