Abstract

http://ssrn.com/abstract=2351285
 


 



Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review


Briana Rosenbaum


University of Tennessee College of Law

2013

4 J. App. Prac. & Process 81 (2013)
University of Tennessee Legal Studies Research Paper No. 226

Abstract:     
Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines. The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach. In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques. Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles. Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.

Number of Pages in PDF File: 78

Keywords: sentencing, sentence appeals, comparative, guidelines, federal, England, appellate review, Booker

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Date posted: November 8, 2013 ; Last revised: January 16, 2014

Suggested Citation

Rosenbaum, Briana, Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review (2013). 4 J. App. Prac. & Process 81 (2013); University of Tennessee Legal Studies Research Paper No. 226. Available at SSRN: http://ssrn.com/abstract=2351285

Contact Information

Briana Rosenbaum (Contact Author)
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996
United States
865-974-0687 (Phone)
HOME PAGE: http://law.utk.edu/people/briana-rosenbaum/
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