Disparity and the Need for Sentencing Guidelines in Maine: A Proposal for Enhanced Appellate Review

Perhaps in no other field of judicial endeavor is diversity and variety more apparent than when a sentencing judge considers the circumstances presented by a defendant convicted of a criminal offense. In each case, the sentencing judge confronts an individual who has no exact counterpart in any defendant previously appearing before the court for sentencing. The sentence imposed is primarily a matter of judicial discretion and is based upon consideration of the nature of the offense, the circumstances surrounding the commission of the offense, and the circumstances of the defendant. The sentencing judge formulates a specific sentence within broad statutory authorization by balancing the competing and contradictory societal goals reflected in the statutory purposes of sentencing. Such a scheme provides significant leeway for the exercise of judicial discretion in determining the length of a criminal sentence and thus permits variations in sentences imposed for convictions of the same criminal offense. Some commentators suggest that sentencing in Maine can be compared to an extreme form of substantively irrational law described as "Khadi Justice." The Khadi, for whom this concept is named, is a Moslem judge who sits in the market place and renders decisions without reference to rules or norms. He operates within a broad universe of information and he alone determines what portion of that information is relevant and should be employed in any given case. Although the comparison is far from accurate, it does point out the absence in current sentencing practice of a coherent and accepted scale of punishment within the broad sentencing range established by statute. Acting under the impetus provided by overcrowded prisons, the abolition of parole, increased sentences, and claims of disparate treatment, critics argue that there is a need to structure and to govern the exercise of discretion by the sentencing judge in order to promote uniformity in sentencing. Legislative enactment of sentencing guidelines is the means generally considered for accomplishing such a goal. Sentencing guidelines typically take into account two variables, the seriousness of the offense and the background of the offender, and provide scales with which to measure each variable. The actual sentence is determined by reference to a grid that designates a sentence corresponding to the combined measurement on both scales. For an administrative commission or a legislature, it is a monumental task to determine abstractly an appropriate sentence for every conceivable future offender. Moreover, the legislative process is too unwieldy to enact and refine sentencing guidelines, and such statutory sentencing schemes thus suffer from rigidity. Finally, there are certain risks in subjecting the sensitive subject of sentencing directly to the whims of the political process. These shortcomings suggest that the Legislature is ill-suited for creating sentencing guidelines. It is not necessary, however, to abandon all efforts at improving the current system. Thus far, little thought has been given in Maine to the alternative of expanding the grounds for direct appeal of sentences and charging the judiciary with the task of creating sentencing guidelines in the process of deciding cases. Appellate courts with common law powers share the lawmaking function with legislatures, and the case-by-case decisional process affords courts the flexibility required to establish scales of punishment. Maine is one of only twenty-six states that provide some form of appellate review of criminal sentences. This Article discloses the deficiencies in the current system of sentence review in Maine and compares it to the eighty-year-old English system of direct appeal of criminal sentences. The sentencing guidelines produced in England show that appellate review provides an effective and rational means of flexibly structuring the exercise of sentencing discretion. Maine has not yet achieved improvements in sentencing practice through channeling sentencing discretion. This Article therefore suggests that the Legislature should change Maine's present system of appellate review in order to permit the development of a law of sentencing by the judiciary.