ference agreed with the principle of appellate review on the condition that (1) three years be the minimum appealable sentence; (2) the bills exempt from the provisions for appellate review sentences providing for an indeterminate term (e.g., 18 U.S.C. 4208 (a), 5010); (3) that language be added to provide that a decision of a panel of the court of appeals shall be final and there shall be no right to file or have considered an application for an en banc review of such panel decision except that the court of appeals may sua sponte on its own discretion grant further review en banc and (4) language be added to clarify the fact that there is no right of appeal except to the United States court of appeals and that any application for review in the Supreme Court must be by petition for a writ of certiorari to review a claim of constitutional violation. [Judicial Conference, Mar. 30-31, 1967] APPELLATE REVIEW OF SENTENCES S. 1692, 87th Congress, would provide that a defendant, convicted in a district court of an offense for which no mandatory sentence is fixed by law, may appeal to the appropriate circuit court on the ground that the sentence is excessive. A similar proposal was disapproved by the Conference at its September 1957 session (Conf. Rept., p. 26). Since that time Congress has broadened the discretion of the district judge in fixing sentences by the enactment of 18 U.S.C. 4208, and has also authorized the convening of sentencing institutes under 28 U.S.C. 334. It was the view of the Committee that, in time, these statutes may have the effect of reducing disparity in sentences. Upon recommendation of the Committee, the Conference thereupon disapproved the bill. The Conference, however, expressed its concern over the problem of disparity of sentences and authorized the Committee to undertake a full study of the problem. [Judicial Conference, Sept. 20-21, 1961] LAW SCHOOL OF HARVARD UNIVERSITY, G. ROBERT BLAKEY, Esq., Chief Counsel, Subcommittee on Criminal Laws and Procedures, DEAR MR. BLAKEY: It is a pleasure to respond to the questions of Senator Hruska, and to comment on several of the questions asked of Judge Lumbard, with regard to the proposals in S. 716 and in proposed Federal Rule of Criminal Procedure 35. The questions, and my answers, are as follows: Question 1.-The Supreme Court has long recognized that the Federal courts are courts of limited jurisdiction, that is, they have no jurisdiction unless it is specifically granted by statute. This principle has been recognized in the cases at least since Meyer v. Tupper, 66 U.S. (1 Black) 522 (1862) ( Taney Ch.J.). The Enabling Act, (e.g. 18 U.S.C. § 3771-72) does not confer on the Advisory Committee power to enlarge the jurisdiction of the Federal courts. How can the issuance of a Rule such as the proposed Rule 35 be justified? Would it not constitute, in effect, the granting of jurisdiction to the review panel to overturn the decision of the sentencing court? How can this be squared with the general principle of Tupper? Answer to 1.-Proposed Rule 35 does not enlarge the jurisdiction of the federal courts. Federal Rule of Criminal Procedure 32 (a) (1) now provides for sentence by the "court"-clearly the District Court-and I know of no statutory provisions dealing with imposition of sentence which limit the "court" to the trial judge. Indeed, 18 U.S.C. § 3562 on Sentence merely refers to the Rules. What the proposed Rule would do is to transfer final sentencing power to the panel of three judges of the District Court. This would not exceed the powers given to the Supreme Court, by 18 U.S.C. § 3772, to make rules "with respect to any or all proceedings after verdict, etc." Nor would the proposed Rule limit any "right of appeal *** in those cases in which appeals are authorized by law." in violation of the second paragraph of this section. Question 2.-Turning now to the substance of Rule 35, the Subcommittee's studies of disparity indicate that there is “inter-circuit" disparity as well as “intra-circuit” disparity. How will Rule 35 meet that problem? Answer to 2-Proposed Rule 35 would meet the problem of intra-district disparity, but not that of intra-circuit or inter-circuit disparity. S. 716 would meet the problems of both intra-district and intra-circuit disparity, but not that of inter-circuit disparity, since it provides that the decisions of the Courts of Appeals "shall be final and not subject to further appellate review." See § 3742 (b). Question 3.—Assuming that there is a growing problem of court congestion, should the Congress exclude a class of cases [e.g., appellate review of sentences] simply because it is newly pressed on it? Should the Congress not attempt to judge its relative merits with other classes of cases now in the courts? For example, if the Federal courts did less work in review of State criminal convictions through the expanded habeas corpus, would they not have more time to review all aspects of Federal cases? Answer to 3.-The problem of court congestion will probably be with us for a long time, and whatever plan for appellate review of sentences is adopted should take account of this. Proposed Rule 35 distributes the load among all the federal districts. It contains no provisions for preventing frivolous appeals, but the reviewing panel is permitted to decide cases on the appeal papers without a hearing. S. 716 would concentrate the load in the Courts of Appeals, but leave to appeal must be obtained before a hearing is ordered. If amended to allow increase of sentence on an appeal by the defendant, both the proposed Rule and S. 716 would have built-in protections against frivolous appeals. Question 4.-Would it be possible through sentencing panels to develop a jurisprudence of sentencing? They probably would not write many opinions. If not, their judgments would be unknown and could not carry force by example. Assuming they wrote opinions, without an appellate power to review them, would the criminal justice system be better off? Would we have anything like authoritative guidance? Answer to 4.-Each sentencing panel under proposed Rule 35, even if it wrote opinions, could not develop a coherent jurisprudence of sentencing beyond the confines of its own district, and of course few districts would have enough cases to develop even such an intra-district jurisprudence. Under S. 716, each circuit could be expected to develop a jurisprudence of sentencing, and (as in other matters) there would be considerable inter-circuit following of precedent, even though their decisions were final and not subject to review by the Supreme Court under § 3742 (b) of the bill. Question 5.-The literature of appellate review indicates that there are a certain number of appellate judges who would reverse a conviction on evidentiary grounds, a technicality of search and seizure or otherwise if they thought the sentence was too high. [See, e.g., United States v. Anderson, 477 F.2d 833 (8th Cir. 1972)]. Does Rule 35 meet that problem? Answer to 5.-Proposed Rule 35, by substituting the judgment of three judges for the uncontrolled discretion of the sentencing judge, should result in fewer cases with excessive sentences to tempt the Courts of Appeals to reverse such cases on substantive grounds. Of course, this problem would not exist under S. 716, by which the appellate court itself could reduce the sentence without disturbing the conviction. Question 6.-Some have suggested that one way to get at leniency by trial courts is to impose minimum mandatory sentences. Might it not be more discriminating to authorize appellate review by the prosecutor where the sentence can be increased? Answer to 6.-As I pointed out in my written statement, the Board of Governors of the American Bar Association is on record as favoring increase of an inadequate sentence on appeal by the prosecutor. To the extent that some trial courts are too lenient in sentencing, this would solve the problem without the need of limiting sentencing discretion by requiring minimum mandatory sentences, which is proscribed by ABA Standards Relating to Sentencing Alternatives and Procedures § 2.1(c). Question 7.-Could the Congress meet the issue of overtaxing the appellate courts by providing for pleas both to guilt and sentence? Plea bargaining exists now and everyone knows that sentence is a crucial issue discussed. Why not formalize that decision and provide for appellate review only where there was no plea as to sentence? This would make it impossible to a defendant to agree to plead and then to appeal his sentence because he has nothing to lose. Would you comment on this idea? Answer to 7.—A number of states (including California, see California Penal Code § 1192.5) now permit a defendant to plead guilty on the basis of a plea agreement for a certain disposition, subject to approval of the court. If the agreed disposition is not approved by the court, the plea of guilty may then be withdrawn by the defendant as of right. A similar provision is found in ABA Standards Relating to Pleas of Guilty §§ 2.1 and 3.3, as amended and approved by the ABA House of Delegates in February 1968. Legislation to this effect would cut out appeals from sentence where such a plea was accepted by the sentencing court. Question 8.-What do you think of the traditional notion that sentencing is a matter of "discretion" as distinguished from "law" and hence unsuited for inclusion in the process of review? Answer to 8.-Discretionary decisions of trial courts are properly the subject of appellate review in many situations today, including a wide range of discretionary decisions in the field of equity. The test of "abuse of discretion” is a test familiar to all appellate courts. There is no traditional notion that matters of discretion are unsuited for inclusion in the process of appellate review. Question 9.-On the basis of Robinson v. Warden, 455 F.2d 1172 (4th Cir. 1972) and other cases cited therein, the American Bar Association would now approve the concept of sentence increase on review taken by the government. However, you would not yet consider the issue settled would you? Answer to 9.--So far as I am aware, there has been no further action by the American Bar Association, or by its officers, its Board of Governors, or any of its Sections and Committees, on the issue of sentence increase on sentence review taken by the Government, since the letter of September 11, 1970, from ABA President Wright, referred to on page 3 of my original written statement to your Subcommittee. Question 10.-For purposes of drafting them, ought the two ideas be considered separately? Answer to 10.-The concept of sentence increase on review taken by the Government should not be considered separately from that of sentence reduction on appeal by the defendant. Both concepts are needed to cut down on the number of frivolous appeals, and to develop a jurisprudence of sentencing. See my answers to questions 3 and 4 above. As I noted in my oral testimony, the right of a defendant to a hearing before his sentence is increased could be guaranteed by providing in proposed Rule 35 that increase of sentence would be allowed only if the prosecutor requested it within a reasonable time after the defendant filed his motion to reduce sentence, in which case the defendant would be brought to court for a hearing. If S. 716 were amended to allow increase of sentence (whether on defendant's appeal, or on appeal by the prosecutor, or both), the reviewing Court of Appeals in any grant of an application for leave to appeal could specifically order that the defendant be brought into court at the time the appeal was heard, if it wished to consider an increase of the sentence. Very truly yours, LIVINGSTON HALL, Chairman, Committee on Reform of Federal Criminal Laws |