NCJ Number
61823
Journal
Hofstra Law Review Volume: 7 Issue: 1 Dated: (FALL 1978) Pages: 71-87
Date Published
1978
Length
17 pages
Annotation
ARGUMENTS FOR AND AGAINST APPELLATE REVIEW OF SENTENCES ARE DESCRIBED, AND A HYBRID APPROACH GOVERNING APPELLATE REVIEW OF SENTENCES IS PROPOSED.
Abstract
ARGUMENTS AGAINST APPELLATE REVIEW OF SENTENCES INCLUDE: (1) COURTS WOULD BE SWAMPED WITH SENTENCE APPEALS FROM DISSATISFIED DEFENDANTS; (2) THE GOVERNMENT'S OPTION TO REQUEST AN INCREASE IN SENTENCE SEVERITY ON APPEAL COULD BE USED TO DISCOURAGE DEFENDANTS FROM PURSUING APPEALS; AND (3) COMPLICATIONS ARISE SHOULD A GIVEN CASE BE APPEALED BOTH IN THE AREA OF THE COURT DECISION AND THE SENTENCE RENDERING. THE PRINCIPAL ARGUMENT FOR APPELLATE REVIEW OF SENTENCING IS THAT IT PROVIDES A MEANS FOR COUNTERING SENTENCE DISPARITY AND ILL-FOUNDED SENTENCING BY PARTICULAR JUDGES. AMERICAN BAR ASSOCIATION STANDARD 20-1.1(B) PROVIDES THAT SENTENCE 'APPEAL SHOULD BE AVAILABLE ON THE INITIATIVE OF THE DEFENDANT OR THE PROSECUTION OR, IN CASE OF CROSS-APPEALS, ON THE INITIATIVE OF BOTH PARTIES.' THIS STANDARD FAILS TO AMELIORATE A POTENTIAL GOVERNMENT THREAT TO REQUEST AN INCREASE IN SENTENCE SEVERITY SHOULD A DEFENDANT PURSUE AN APPEAL. TO AVOID AN APPEAL STRUCTURE THAT APPEARS 'STACKED' AGAINST AN ACCUSED, REVIEW OF SENTENCES SHOULD BE INITIATED ONLY BY THE DEFENDANT, AND NO INCREASE IN SENTENCE SEVERITY SHOULD BE ALLOWED BY AN APPELLATE COURT. THERE IS NO SOUND JUSTIFICATION FOR PERMITTING GOVERNMENT APPEAL OF SENTENCES, SINCE IT IS UNLIKELY THAT APPELLATE POWER TO INCREASE SENTENCES WOULD CORRECT THE MOST EXTREME CASES OF EXCESSIVE LENIENCY IN SENTENCING. THESE ABUSES MOST OFTEN OCCUR IN THE CONTEXT OF BARGAINED GUILTY PLEAS. IF SENTENCING INCREASES WERE PERMITTED, SUCH BARGAINS WOULD SOON INCLUDE PROHIBITIONS OF GOVERNMENT APPEALS OF THE SENTENCES. FOOTNOTES ARE PROVIDED. (RCB)