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Appellate Review of Sentences: Reconsidering Deference

46 Pages Posted: 18 Sep 2009 Last revised: 22 Apr 2010

Michael M. O'Hear

Marquette University - Law School

Date Written: September 16, 2009

Abstract

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite the shortcomings of the standard justifications, the Article suggests that there is 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 Article 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.

Keywords: sentencing, deference, appellate, localization

JEL Classification: K14, K4, K41

Suggested Citation

O'Hear, Michael M., Appellate Review of Sentences: Reconsidering Deference (September 16, 2009). William & Mary Law Review, Vol. 51, 2010; Marquette Law School Legal Studies Paper No. 09-33. Available at SSRN: https://ssrn.com/abstract=1474456

Michael M. O'Hear (Contact Author)

Marquette University - Law School ( email )

Sensenbrenner Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-3587 (Phone)
414-288-5914 (Fax)

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