Academic journal article Harvard Law Review

More Than a Formality: The Case for Meaningful Substantive Reasonableness Review

Academic journal article Harvard Law Review

More Than a Formality: The Case for Meaningful Substantive Reasonableness Review

Article excerpt

Appellate review of sentencing is under assault. When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, (1) it established appellate review of federal sentences for reasonableness to cabin sentencing judges' newly acquired discretion. (2) The substantive component of this review--which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate--is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement. Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable. (3) Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve. If sentencing is to be fair, appellate courts must do better. This Note argues that they can.

This Note proceeds in five parts. Part I surveys the history of appellate review of federal sentences. Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts. Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing. Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.


This Part traces the winding path of appellate review of sentencing from the colonial era to the present day. Section A focuses on the narrow scope of appellate review of sentences prior to the establishment of the Federal Sentencing Guidelines. Section B discusses appellate review under the Guidelines. Section C traces the piecemeal development of reasonableness review in Booker and its progeny.

A. Appellate Review of Sentences Prior to the Guidelines

The early colonial practice with respect to sentencing relied on a determinate scheme, in which specific sentences (often death or fines) were prescribed for offenses. (4) However, this rigid system was gradually washed out on a tide of reformist concerns over proportionality, in favor of an indeterminate system wherein judges enjoyed vast discretion to sentence defendants within a statutory range. (5) As a formal matter, sentencing appeals were allowed only under narrow circumstances. (6) As a practical matter, sentences were unreviewable. (7) That sentencing under this system could be said to come down to "what the judge ate for breakfast" (8) does not seem too far from the truth. Without any standards to guide their decisionmaking, without meaningful appellate review, and with few procedural requirements, sentencing judges "made all of the moral, philosophical, medical, penological, and policy choices surrounding what particular sentence to impose upon a particular offender." (9) The sentencing judge was truly "master of his courtroom." (10)

B. Sentencing Reform and a New Role for Appellate Review

The enactment of the Sentencing Reform Act of 1984 (11) (SRA) represented a seismic shift in federal sentencing from an entirely indeterminate scheme back to a determinate one--albeit of a very different kind. In large part, the sentencing reform movement of the 1970s and 1980s, which culminated in the enactment of the SRA, was animated by a desire to eliminate the unwarranted disparities perceived to be caused by sentencing judges' unbridled discretion. (12) Given the differing perspectives among judges regarding the purposes of punishment, the relevance of various aggravating and mitigating circumstances, and the relative seriousness of particular crimes, (13) a stark lack of uniformity across the sentencing landscape was hardly surprising. …

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