Commentary: Gall and Appellate Court Transparency

This entry is part of our continuing commentary on the decisions yesterday in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Carissa Byrne Hessick and Andrew Hessick. Carissa is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University (bio here), and Andrew is a visiting associate professor, also at Arizona State (bio here).

Mark Osler notes that the Court’s opinion in Kimbrough discourages sentencing court transparency in crack cocaine sentences. Gall appears to discourage appellate court transparency. Justice Stevens’s majority opinion tells appellate courts that they may not apply a “proportionality test” when reviewing sentences outside the Guidelines range. Yet he also tells appellate courts that they make “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Justice Stevens seems distressed that appellate courts have framed their review of district court explanations of non-Guideline sentences in terms of a percentage variance from the Guideline range, yet he finds it “uncontroversial that a major departure should be supported by a more significant justification than a minor one.”

Doug Berman and Michael O’Hear may well be correct that Justice Stevens added this Guidelines-friendly language to the opinion in order to placate Breyer, Kennedy and/or Roberts. But I am concerned that this language may have sufficiently muddied the water that it will result in a “business as usual” approach to reversing lenient sentences in some circuits. The Court’s opinion in Gall tells these appellate courts that there is a substantive component to their reasonableness review. But it gives little guidance about what that substantive component ought to entail. Indeed, the guidance Gall does give to appellate courts seems to be a message of obfuscation – they may consider the extent of a district court’s variance, but they may not do so in an overly precise way. The lack of appellate accountability plus the pro-guidelines language in the opinion could let those appellate courts that have clung to the Guidelines in the wake of the Court’s decision in Booker to continue to do so.

Potentially compounding the problem is the fact-intensive nature of the review. Gall tells appellate courts that substantive reasonableness review must “take into account the totality of the circumstances,” and the analysis of the reasonableness of Gall’s sentence is quite long. The Court’s decision to encourage fact-intensive appellate review and discourage appellate courts from articulating generally applicable standards (i.e., consider the variance in a particular case, but do not frame your review in general terms of proportionality) is bound to result in fewer opportunities for certiorari to counteract any appellate preference for Guideline sentences, because the appellate determinations will be factbound.