ute at all. Moreover, its preclusion section leaves open the widest kind of discretion, e.g., barring the death penalty if the defendant's physical or mental condition "calls for leniency", or if the evidence does not foreclose "all doubt" respecting the defendant's guilt. "Substantial mitigating circumstances" can also avoid the death penalty, and the terms used in this section almost invite the kind of discriminatory application condemned by the majority in Furman. A person otherwise punishable by death can be excused if his "emotional disturbance" was "extreme", if he was subject to "unusual" pressures, or his mental capacity "impaired", or indeed, if he was "young" (which, given the preclusion of those under 18, is especially unclear). On the other hand, the judge or jury can consider the murder an aggravated one (it is, however, not clear from the statute why they should, unless aggravating factors can affect mitigating ones—although this is nowhere prescribed) if the crime was "especially heinous, atrocious or cruel”, or manifested "exceptional depravity", or if the defendant had a "substantial history" of assaultive behavior.

Finally, the judge may overrule the jury's death verdict, presumably for reasons of his own-a commendable check on the use of the death penalty, but clearly one which opens the way to arbitrary imposition of the sanction.

S.1

S.1 contains many of the defects of the Commission bill. Ironically, the absence of a preclusion section in the bill, which we condemned above because it might lead to more death penalty decisions, softens one of the constitutional objections made to it.

S.1400

This bill probably comes the closest of the three to meeting the requirements of Furman. That it falls far short, in our judgment, of compliance with Furman suggests to us that the problem of drafting death penalty legislation which is both evenly applicable and yet properly considerate of human values is insurmountable.

The reason why S.1400 seems closer to the Furman standard is that it more precisely defines the conditions under which the death penalty is to be imposed. While the categories of potential defendants are broad (to which we object on policy grounds stated above), they are more definite than in the other two bills, which rely, without providing real guidance to the sentencing authority, on vague aggravating and mitigating circumstances.

We do not, however, mean to overstate the distinction; for in some respects the three statutes are identically broad. Thus, S.1400, like the others, lists as a prerequisite to the imposition of the death penalty cases in which the crime was committed in an "especially heinous, cruel, or depraved manner.” Moreover, S.1400 goes farther than the other two bills in permitting discretion by precluding cases in which the defendant's "mental capacity was significantly impaired" (but short of insanity) or where the defendant was under "unusual or substantial duress" (but short of legal duress).

Finally, as noted, S.1400 permits the prosecutor to determine when the death penalty provisions will come into play. His failure to certify a case as a death penalty case would seem to close the issue, and to give rise to precisely the danger of arbitrary imposition of the penalty condemned in Furman.

APPELLATE REVIEW OF SENTENCING

In this section we will compare the appellate review of sentencing provisions of S.1 and S.1400 with the provisions of the Brown Commission bill, which was analyzed in the original report of the Committee, p. 94.

S.1 provides for appellate review by a defendant and by the government only with respect to "upper-range imprisonment for dangerous special offenders." Accord, 18 U.S.C. 3576, enacted in 1970 as part of the Organized Crime Control Act of that year. It does not require the sentencing court to make any findings. It authorizes a court of appeals to affirm the sentence, impose any sentence (including an increased sentence) which the sentencing court could originally have imposed or remand for further sentencing proceedings. However, only if the government appeals the sentence can the court of appeals impose a more severe sentence than that imposed by the trial court.

S.1400 does not provide for any appellate review of sentences.

Comment:

Appellate review of sentences is not new. It once existed by statute in the federal courts and now exists in several of our states and in the military courts. See A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, approved by the A.B.A. House of Delegates in February, 1968, p. 14. Moreover, there is substantial agreement within the legal community to embody federal appellate review within the revised federal penal code. As Judge Frankel has observed: "I stump [for it] as one step toward the rule of law in a quarter where lawless and unchecked power has reigned for too long." Marvin E. Frankel, Criminal Sentences, p. 85 (1st ed. 1972).

The Brown Commission proposed that a court of appeals shall have "the power to review the sentence and to modify or set it aside for further proceedings." We noted in our original report that this proposal was intended only to reflect the Commission's view that some kind of review of sentencing be provided. We agreed with the concept of appellate review as a way of creating some uniformity out of the morass of sentencing disparity and urged that:

A. findings of fact be required of the trial court; and

B. a certiorari procedure be adopted under which an appellant would have to convince-with attendant briefs and oral

argument-an appellate court of the merits of his appeal before a full review.

We took no position on the right of the government to appeal nor on the possibility of increasing sentences by the appellate court.

While we still agree with the concept of appellate review, we disagree with the provisions of S.1. Specifically, the limitation of appellate review to so called "dangerous special offenders" illogical and fails to meet the problem of sentencing disparity.

is

Excessively lengthy and inappropriate sentences are not, of course, necessarily limited to "dangerous special offenders." For example, in recent years one of the most consistent areas of disparity in sentencing has been the disposition of draft cases, obviously an area seldom covered by the dangerous special offender provision. And, perhaps more fundamentally, a selective exercise of review would fail to meet the aim of allowing appellate courts to evolve uniform sentencing guidelines through decisions on all types of sentences.

Moreover, with respect to the upper-range imprisonment for dangerous special offenders S.1 provides:

"Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused."

* Definition, at §1-4B2(b), includes: previously convicted of two felonies and imprisoned for one - pattern of criminal conduct which constituted a substantial source of his income or in which he manifested special skill or expertise - aggressive conduct - firearm - conspiracy.

** It has been common in this area for individual judges to exercise one sentencing policy for all draft defendants. Thus, one judge would consistently impose probation, another the maximum five years impri onment. See "Sentencing Selective Service Violators: A Judicial Wheel of Fortune.", 5 Colum. J. Law and Soc. Problems 164 (1969).

It is not at all clear that this language will be interpreted by the courts as authorizing broader sentence review for the defendant than the limited review currently undertaken in a number of federal circuits.

The first two areas to be included in the circuit courts' review under S.1 (whether the procedure was lawful and whether the findings were erroneous) fall within the general area of review of the sentencing process. Federal appellate courts presently distinguish sharply between that kind of review and review of the propriety of the sentence itself. While refusing to review particular sentences, the courts have already recognized their authority to review-on due process grounds-the sentencing process. Thus, although appellate courts preclude themselves from reviewing the discretionary judgment of the trial court in imposing a particular sentence, they will-even without statutory authorization-currently review whether all facts necessary to make that judgment were correctly presented and considered. Therefore, the first two provisions of S.1 may well be interpreted by the courts as no more than a codification of a form of review currently recognized as proper.

The last area of review proposed by S.1 (abuse of discretion) would also create problems of interpretation because of existing case law. The phrase "abuse of discretion" as currently used has been given a particularly restricted definition in the context of sentence review. Although appellate judges have consistently stated that they will review a sentence only for "abuse of discre

Following the decision of the Supreme Court in Townsend v. Burke, 334 U.S. 736 (1948).

** Cases recognizing this authority have vacated sentences in order to correct a variety of procedural errors including the consideration of false information concerning prior convictions, consideration of prior illegal convictions, the imposition of a longer sentence because the defendant chose to exercise his right to a trial or to an appeal, the consideration of illegally seized evidence in sentencing, and violations of statutory sentencing procedures.