Appellate Review of Sentences: Reconsidering Deference

Michael M. O'Hear

Marquette University - Law School

September 16, 2009

William & Mary Law Review, Vol. 51, 2010
Marquette Law School Legal Studies Paper No. 09-33

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.

Number of Pages in PDF File: 46

Keywords: sentencing, deference, appellate, localization

JEL Classification: K14, K4, K41

Open PDF in Browser Download This Paper

Date posted: September 18, 2009 ; Last revised: April 22, 2010

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

Contact Information

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)
Feedback to SSRN

Paper statistics
Abstract Views: 756
Downloads: 79
Download Rank: 235,241