Legal Commentary

I have a new paper on SSRN entitled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences."  As I observed in an earlier post, I've become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences.  My forthcoming article in the Florida State Law Review focuses on "explanation review" in the federal system.  The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.  As I see it, the fundamental vice of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  The fundamental vice of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines; it is enough if judges expressly invoke the purposes of punishment in explaining their sentences.  My proposal seeks to promote engagement with both guidelines and purposes.

As a bonus, this is my first paper with a South Park reference.  I actually cribbed from my own teaching notes from Sentencing, where I have used an analogy to the Underpants Gnomes to good effect in teaching the leading Wisconsin case on explanation review, State v. Gallion.  (The basic idea is this: much as the Gnomes do not explain how they will convert underpants into profits, the Wisconson Supreme Court does not explain how to convert the generic purposes of punishment into a meaningful sentence explanation -- even though the Supreme Court requires all Wisconsin sentences to be explained by reference to the generic purposes.)  Based on my experience in teaching Gallion, I would heartily recommend the use of South Park references in law teaching.  Perhaps others would like to suggest additional episodes that lend themselves well to the law school classroom.

In any event, the abstract of the new paper appears after the jump. 

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such "explanation review" is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts' failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.