NCJ Number
31533
Journal
William and Mary Law Review Volume: 17 Issue: 1 Dated: (FALL 1975) Pages: 184-203
Date Published
1975
Length
20 pages
Annotation
THIS COMMENT EXAMINES THE HISTORY AND CURRENT STATUS OF THE RULE OF NONREVIEW, AND ARGUES THAT A MORE STRUCTURED FRAMEWORK IS NEEDED WITHIN WHICH DISCRETION IN SENTENCING MAY BE EXERCISED AND REVIEWED.
Abstract
WITHIN THE FEDERAL JUDICIAL SYSTEM AND THE MAJORITY OF STATE COURTS, DECISIONS AS TO THE TYPE AND LENGTH OF SENTENCE ARE SOLELY FOR THE DISCRETION OF THE TRIAL COURT; MANY COURTS THEREFORE ADHERE TO A 'RULE OF NONREVIEW', WHICH STATES THAT CRIMINAL SENTENCES ARE UNREVIEWABLE ON APPEAL EXCEPT TO DETERMINE IF THEY ARE WITHIN STATUTORY LIMITS. THE ADVENT OF INDIVIDUALIZED SENTENCING, HOWEVER, HAS LEFT THE SENTENCING PROCESS MORE OPEN TO ABUSE OF DISCRETION; MANY COURTS HAVE BEGUN TO DEVELOP A COMMON LAW OF SENTENCE REVIEW AIMED AT EXAMINING THE SENTENCING PROCESS - INCLUDING THE EXERCISE OF JUDICIAL DISCRETION - AS OPPOSED TO REVIEW OF THE SENTENCE ITSELF. THE ABUSES WHICH THUS FAR HAVE BEEN RECOGNIZED AS A BASIS FOR REVIEW INCLUDE NONEXERCISE OF DISCRETION AND INCLUSION OF IMPROPER FACTORS IN THE SENTENCING DECISION, RELEVANT CASES ARE CITED FOR EACH OF THESE TYPES OF ABUSE. THE AUTHOR NOTES THAT THERE IS LITTLE INDICATION THAT THE ROLE OF NONREVIEW WILL BE ABOLISHED IN THE NEAR FUTURE. CONSEQUENTLY, HE SUBMITS THAT THE ROLE OF APPELLATE COURTS SHOULD BE EXPANDED BY MAKING USE OF THE RULE'S ONE EXCEPTION, REVIEW FOR ABUSE OF DISCRETION. THIS COULD BE FACILITATED BY A 'STRUCTURING' OF DISCRETION, WHICH COULD INCLUDE SUCH ELEMENTS AS INFORMED APPELLATE SCRUTINY OF THE SENTENCING JUDGE'S DECISIONMAKING PROCESS, USING WRITTEN STATEMENTS OF THE REASONS FOR EACH SENTENCE IMPOSED; DEVELOPMENT OF POLICY STATEMENTS; AND ADHERENCE TO PRECEDENT. (AUTHOR ABSTRACT MODIFIED)