I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.”  As I observed in a recent 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 basic flaw 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.  In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts.  My proposal seeks to promote engagement with both guidelines and purposes.

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.  The abstract appears after the jump.