NCJ Number
15826
Journal
Duke Law Journal Volume: 1973 Issue: 6 Dated: (JANUARY 1973) Pages: 1357-1376
Date Published
1973
Length
20 pages
Annotation
THE ORIGIN AND HISTORY OF THE JUDGE-MADE RULE AGAINST SENTENCE REVIEW AND THE MEANS OF AVOIDING THIS RULE ARE DISCUSSED; AND IT IS ARGUED THAT A REVIEWABLE RECORD OF THE SENTENCING PROCESS SHOULD BE MADE.
Abstract
ADHERENCE TO THE RULE AGAINST SENTENCE REVIEW HAS OCCASIONALLY RESULTED IN CLEARLY EXCESSIVE BUT UNCHALLENGEABLE SENTENCES AND IN UNJUSTIFIED DISPARITY IN PUNISHMENT FOR SIMILAR CRIMES. NOT SURPRISINGLY, THOUGH THE RULE IS STILL WIDELY FOLLOWED, IT HAS BEEN SUBJECTED TO RELENTLESS CRITICISM. IN RESPONSE TO SUCH CRITICISM AND TO FREQUENT INSTANCES OF UNFAIRNESS, FEDERAL APPEALS COURTS HAVE INCREASINGLY AVOIDED THE RULE AGAINST SENTENCE REVIEW. GIVEN THE APPARENT BREADTH OF THESE JUDICALLY DEVELOPED AVOIDANCE TECHNIQUES, IT CAN PROBABLY BE SAID THAT AN APPEALS COURT NOW HAS AMPLE PRECEDENT FOR THE REVIEW OF ANY SENTENCE IT CONSIDERS OUTRAGEOUS. AMONG THE TECHNIQUES EMPLOYED TO REVIEW SENTENCES ARE: A REVIEW ON DUE PROCESS OR PROCEDURAL GROUNDS; REVIEWS ON THE GROUNDS OF PROTECTING THE DEFENDANT'S PRIVILEDGE AGAINST SELF-INCRIMINATION; REVIEW TO ENFORCE SENTENCING STATUTES; EXERCISING SUPERVISORY CONTROL; AND REVIEWING ABUSE OF DISCRETION. IT IS STATED THAT ACCESS TO SERIOUS REVIEW IS DEPENDENT UPON THE EXISTENCE OF A REVIEWABLE RECORD. AT PRESENT, A SENTENCING JUDGE IS USUALLY NOT REQUIRED TO DISCLOSE TO THE DEFENDANT OR TO AN APPEALS COURT EITHER THE PRESENTENCE REPORT OR THE JUDGE'S GROUNDS FOR A PARTICULAR SENTENCE. THE AUTHOR CONTENDS THAT THIS FREEDOM TO OPERATE IN SECRET, IF AT ALL JUSTIFIABLE, ACCORDS ONLY WITH A SYSTEM WHERE SENTENCING DECISIONS ARE NOT REVIEWABLE. IF SENTENCES MAY BE SUBJECTED TO APPELLATE SCRUTINY, THE COMPLIATION OF A REVIEWABLE RECORD OF THE SENTENCING DECISION WOULD APPEAR TO BE MANDATED. (AUTHOR ABSTRACT MODIFIED)