Appellate Review of Sentencing Decisions
Carissa Byrne Hessick
Arizona State University (ASU) - Sandra Day O'Connor College of Law
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
July 30, 2008
Alabama Law Review, Vol. 60, No. 1, 2008
In Booker v. United States, the Supreme Court granted district courts broad discretion in imposing sentences in an effort to create a sentencing scheme complying with the Sixth Amendment. At the same time, however, to achieve the sentencing uniformity intended by Congress, the Court authorized circuit courts to review sentences for reasonableness. These two objectives - requiring district courts discretion and cabining that discretion through reasonableness review - are in tension with each other. This Article argues that, in an effort to satisfy these conflicting goals, the Court has in subsequent cases sacrificed the central functions of appellate review, error correction and law making. It has undermined the error correction function by permitting appellate courts to presume that within-Guidelines sentences are reasonable, and it has impaired the lawmaking function by directing appellate courts to defer to district courts' sentencing policy determinations. Moreover, the Court's failure to describe how to balance these two conflicting objectives, or even to acknowledge the conflict, has resulted in confusion in the circuit courts.
Number of Pages in PDF File: 50
Keywords: sentencing, standards of review, appellate practice, Supreme CourtAccepted Paper Series
Date posted: July 31, 2008 ; Last revised: October 27, 2008
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