Andrew D. Goldstein, Note, What Feeney Got Right: Why Courts of Appeals
Should Review Sentencing Departures De Novo, 113 YALE L.J. 1955 (2004).
(Abstract prepared by James Grimmelmann)
The purpose of this Note is to suggest that despite the doomsday rhetoric of much of the legal community,
departure decisions should be reviewed de novo by the courts of appeals.
The "abuse of discretion" standard for reviewing Guideline departures is, I
argue, a relic of the pre-Guidelines regime in which judges were
authorized—and expected—to consider each offender holistically and base
their decisions on any available information, including the individual’s
character, upbringing, and family life. For better or worse, the enactment
of the Sentencing Guidelines in 1987 fundamentally changed the essence of
the sentencing decision from an exercise of wide-ranging discretion to an
application of carefully delineated rules by which offenders are placed in
categories rather than treated as individuals. This is, at its essence, a legal assessment that
appellate courts are at least as capable of making as district courts.