From the Bird’s Eye

Abstract

Criminal sentences are rarely reversed for being too long. Of the approximately one million federal sentences imposed in the past fifteen years, appellate courts have only held about two dozen substantively unreasonable. Judges have, even in public statements, described substantive reasonableness review as “functionally nonexistent” and “a waste of time.” Against this backdrop, three decisions from the Sixth Circuit published within the last year are nothing short of remarkable. In each case, the panel concluded that the district court, despite following standard processes and procedures, had nonetheless imposed a substantively unreasonable sentence. This Article examines these cases in detail, to glean lessons for scholars and practitioners. I argue that, in each decision, the Sixth Circuit took a bird’s eye perspective to the issues at hand, reaching a common-sense decision based on aggregative sentencing data, case law, and the defendant’s prior criminal history. These factors, I further argue, provide a model for other appellate courts who hope to engage in more searching substantive reasonableness review. I also acknowledge some limits to the Sixth Circuit’s approach. In each of these three cases, the appellate court reined in district courts for imposing above-guideline sentences. The decisions, however, say little about what—if any—role an appellate court should play in mitigating harsh sentences that are within (or even below) the guidelines. Reform of such sentences may require stakeholders to look elsewhere, including either legislative reform or appointment of a more diverse set of district judges.