Appellate Review of Sentencing Decisions

50 Pages Posted: 31 Jul 2008 Last revised: 27 Oct 2008

Carissa Byrne Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: July 30, 2008

Abstract

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.

Keywords: sentencing, standards of review, appellate practice, Supreme Court

Suggested Citation

Hessick, Carissa Byrne and Hessick, F. Andrew, Appellate Review of Sentencing Decisions (July 30, 2008). Alabama Law Review, Vol. 60, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1189989

Carissa Byrne Hessick (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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