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Article Excerpt
I. INTRODUCTION
The traditional rule under the common law is that an appellate court may not review a sentence that the trial court has imposed if it is within statutory guidelines. (1) Since the legislature establishes narcotics laws, this rule effectively leaves the question of proportionate punishment for narcotics violations within the purview of politicians. (2) In the context of the War on Drugs and a political climate bent on being "tough on crime," which incentivizes greater penalties for certain criminal offenses, the political element removes the query as to whether a penalty is proportionate and replaces it with an imperative to ramp up penalties. (3)
However, there is a small but growing trend to move away from strict application of the common law rule, even where the statute does not authorize appellate sentence review. (4) Nor is this a new trend, as the case law demonstrates. A generation ago, in People v. Thomas, an appellate court held that a state statute prescribing a sentence of fifteen years without the possibility of parole for a third felony drug conviction violated California's constitutional right to be free from cruel and unusual punishment. (5) Courts that depart from the common law rule discuss amorphous standards such as "shockingly disproportionate" and "clear abuse of discretion," and may resort to comparing the penalties for offences of similar gravity in making their determination. (6)
There has been much professional and academic discussion about sentencing guidelines fueled by the strong concern that drug sentences may be overly harsh. (7) The conflict may be characterized as majoritarian (legislatures passing popular crime laws) versus counter-majoritarian (judges challenging legislative power to achieve what they consider fairer results). (8) In short, this Comment argues that the movement away from the common law in sentencing for narcotics and other stigmatic crimes signals judicial dissatisfaction with legislative decision-making, and represents a form of institutional protest, the continued and expanded efforts of which may play a major role in achieving a rational drug criminal policy.
This discussion also concerns itself with the implications of expanding the role of appellate sentence review. Insofar as a greater role for the courts comes at the expense of a lesser role for the legislatures, certain separation of powers questions arise that must be addressed in a government of checks and balances, namely: (1) Is legislative power weakened unconstitutionally?; (2) Do the courts possess manageable standards by which to assess the appropriateness of sentences?; (3) Does a greater role for the courts in this area cause legitimate concern about a slippery slope in criminal cases where sentences have not generally been thought excessive?; and (4) Given the importance of criminal sentences as a badge of societal opprobrium, does appellate sentence review unfairly deprive the citizenry of its voice in making public its disapproval of conduct?
These difficult questions rarely square up with easy solutions in the form of bright-line rules. For those who subscribe to a formal understanding of the separation of powers, the practice of appellate sentence review may be fairly characterized as a usurpation of democratic power. (9) For others, more concerned with the functional aspects of a government of checks and balances, the current lack of incentive for the legislature to act highlights a breach in effective government, calling for an effective solution or at least a means to such a solution. (10)
This Comment would place appellate sentence review as a tool that lies permissibly within the judiciary's power, one that serves the tandem purposes of communicating dissatisfaction to the affected branch and correcting for circumstances not foreseen by this branch. Such review must be selectively employed in a category of cases sharing certain specific characteristics, namely, so-called stigmatic crimes. (11) Stigmatic crimes are certain politicized crimes that a legislature compromised by a "tough on crime" culture is ill-suited to address in a rational and cost-effective manner.
This Comment is divided into three parts. Part II discusses the role of the common law in limiting the historic use of appellate sentence review and situates such review powers as judicial in nature. Part III assesses narcotic sentencing in the United States, including the history, costs, attitudes of different constituencies, and reasons why legislative solutions are unlikely. Part IV advocates a framework for the application of sentence review powers as the most workable solution and responds to certain anticipated arguments against review powers, including the view that such powers impermissibly conflict with the role of the legislature.
II. APPELLATE REVIEW
A. THE COMMON LAW RULE FORBIDDING APPELLATE SENTENCE REVIEW
The common law rule holds that an appellate court should not review a sentence where the governing statute specifies that sentence for the relevant offense. (12) What are the rationales behind the adoption of this rule? In what order of importance do courts view them? How can they be logically organized? The discussion to follow addresses these questions in an attempt to frame the common law rule in terms of its costs and benefits. Though utility should rarely be the sole basis for evaluation, it provides us with a starting point for better understanding the normative principles and values at stake.
Administrative convenience may be the consequence that justifies the common law rule in fact. (13) The judiciary in the United States has long adhered to a strong doctrine of finality, one that emphasizes the firmness of decisions and reveals institutional discomfort with revisiting issues where a trial judge had to make a decision on the spot or on the basis of conflicting or inadequate evidence. (14) Great deference to the findings of juries and the discretion of trial judges embodies the rule.
In the common law system, where judges consistently applied considerable discretion in the sentencing of defendants, the refusal to apply appellate review to criminal sentences made sense as a reflection of the trial court's fact-finding role and the discretion available to judges to adjust sentences to the facts of the case at hand. There can be little doubt that nearly every defendant would appeal their sentence under a countervailing system and consume great resources in the process, often with little prospect of a different result. From this perspective, the common law rule is an efficiency restraint that the judiciary imposed on itself.
An alternative rationale for the rule, and probably the more appealing one instinctively, is that it preserves the separation of powers and advances democracy. (15) The separation of powers argument posits that the imposition of criminal sentences in a given case, and the power to define the parameters of such a sentence, are separate functions allocated to different branches of government. (16) Courts impose sentences, but legislatures determine the range of acceptable sentences. Therefore, if an appellate court determines for itself that a sentence is excessive where the statute allowed the sentence, the court's invalidation constitutes an improper taking of legislative authority. (17) The argument for democracy continues thusly: the legislature represents the will of the people; therefore, any frustration of the legislative will constitutes an affront to democratic decision-making. (18) The legislature here is a proxy for "the people."
From this angle, the common law rule was generated by the need of the legislature to control the courts, whose counter-majoritarian interests interfere with democracy. But this viewpoint is flawed primarily because it falsely equates the lawmaking function of the legislature with the review power of an appellate court. (19) The legislature creates a law that proscribes prohibited conduct and determines consequences to be applied in a range of anticipated and unanticipated factual scenarios. (20) Appellate sentence review is tied to the facts of a specific case and need not invalidate a statute, short of a constitutional finding that a law is per se invalid. That the statute continues to have the same proscriptive effect on future conduct is a testament to the power of the legislature.
A second problem with viewing the rule as a restraint imposed by the legislature is that, after all, the rule is rooted in the common law--judge-made law. The lack of codification by the legislature detracts from the separation of powers argument. (21) That is not to say that courts did not impose the rule on themselves, at least in part, for such reasons. However, the rule may best be understood as judicial in origin, and subject to alteration by that same judiciary. The American Law Institute reached the same conclusion, recommending that criminal sentences be open to appellate review as part of any rational crime policy. (22)
B. INNOVATIONS ON AND DEROGATIONS FROM THE COMMON LAW RULE
In the 1970s, the appellate system in California handed down a significant ruling asserting that deference regarding sentencing was not an unassailable obligation of the court. In People v. Thomas, (23) the defendant, Melvin Braxton Thomas, was a drug offender whom the court sentenced to fifteen years without the possibility of parole under the terms of the relevant narcotics statute. (24) The issue on appeal was whether the legislature's denial to the defendant of the possibility of parole constituted cruel and unusual punishment under the state constitution. (25)
Though the court's opinion does not identify the state's arguments on the matter, the state likely argued that the legislature's democratic process precluded a finding that the sentence constituted cruel or unusual punishment. Central to this argument is the idea that where standards lack clear objective criteria, such as the line demarking cruelty from just punishment, the will of the people, rather than executive or judicial bureaucrats, should determine the necessarily arbitrary boundaries. (26) This point further assumes that the legislature represents popular will and the judiciary represents an instrument that frustrates that will. (27) This is an assumption that this Comment will revisit, and challenge, in Part III.
However, criminal sentences are, or can be, subjected to a principled test of proportionality under the cruel and unusual punishment doctrine. (28) Under this approach, the court would be free to find any sentence excessive where the court felt that such a sentence was out of proportion to the nature of the offense. (29) While the Thomas opinion kept silent as to the criteria consulted in measuring the nature of an offense, it strongly implicated normative notions of fairness in ruling for the defendant.
By reference to In re Foss, the court compared the penalty to those the legislature had assigned to "more serious crimes," both in California and in other jurisdictions. (30) In making the leap from this comparison to the conclusion that the sentence was excessive, the court must have assumed that drug offenses are not, in and of themselves, comparable in terms of gravity to these other violent offenses. (31) In Part III, this Comment will debate the issue of whether court determinations of an offense's gravity always, never, or sometimes violate the principles of limited government.
While decisions similar in result to this California case are rare, (32) many cases do adopt, at least by implication, the Thomas court's reasoning when asserting their authority to review statutory criminal sentences. Freely acknowledging that result-driven cases assert themselves most forcefully, we must not forget the important role played by the assertion of the right to review. (33) The right to review necessarily implicates the authority to apply standards of review. It is a standard of judicial abdication, rather than of review, to defer automatically to the actions of the reviewed parties.
In surveying cases derogating from the common law rule, one frequent theme is the courts' constant, although unstated, hesitancy to contradict the legislature blatantly, or to propose a framework by which criminal sentences would be reconsidered wholesale by the judiciary. (34) This reluctance suggests that advocates for the common law rule overstate the threat of judicial encroachment on legislative turf. (35) Another point of interest is the simple question: why assert the power at all? What reason would a court have to assert the authority of appellate review in a case where such an assertion will not alter the ultimate outcome?
The cynical attitude that all entities seek to aggrandize their power is an inadequate explication, because it fails to address the unique context of these decisions. This Comment proposes that courts in the last generation or so perceive a growing problem--the legislature's proliferation of heavy-handed sentences in the pursuit of reelection--and that courts foresee a future where this problem could become so severe that the power of appellate sentence review will be critical in cases where it has not been thus far.
III. NARCOTIC SENTENCING
A. MODERN HISTORY OF NARCOTIC SENTENCES: THE POLITICAL ANGLE
In the American system, judges enjoyed great latitude in the determination of criminal sentences until the second half of the twentieth century, with its dramatic increase in scope of the federal government's involvement in the daily lives of citizens. (36) The expansion of the federal government coincided with intense social conflict as the nation struggled to define itself in the midst of the Cold War. (37) Dissidents...
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