The article says that Bernie Madoff will not appeal his 150 year sentence. IANAL, but I didn’t know that was even an option. As long as the sentence is permissible under the crime that you were convicted of, I thought a judge had a 100% final say on what it was. Is that wrong?
Yes, yes it is.
A sentence may be regarded as unjust, and hence appealable, if it is excessive. If you plead guilty to speeding 65 in a 55 MPH zone, and the judge fines you $10,000, or if you trespass on private property and are sentenced to four years in prison for it, the sentence is disproportionate to the crime (and in general the judge would have no power to impose it, but for the sake of argument, suppose he does in the cases hypothecated).
While I don’t care to form an opinion whether Bernie Madoff’s sentence was excessive, he certainly has the right to question if a 150-year sentence is disproportionately harsh (presumably “cruel and unusual”).
I’m assuming that in Madoff’s case, that the judge did have the power; that the sentence was in the lawful allowable range. If it wasn’t then certainly that is grounds for appeal.
Let’s say that the law for speeding 65 in a 55 provides for a fine of $50 to $500 and a judge fines you $500. What is there to appeal? Maybe you felt that a fine in the $100 range was more appropriate to your circumstances, but isn’t that what the judge gets a salary to decide?
In fact, around half of all federal criminal appeals in 2008 challenged only the sentence: http://www.ussc.gov/ANNRPT/2008/Table55.pdf
Well, ignorance fought. Thanks.
But, I am still curious as to the grounds on which a sentence could possibly be fought. Sentencing would seem to be a slam dunk. The law says the punishment could be from 1 to 10 years. The judge sentences you to 9 years. How could this possibly be defective?
Felony sentencing is a bit more complicated than that:
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There are sentencing guidelines that require some complicated analysis of previous convictions, behavior before, during, and after the crime, restitution, cooperation with investigators, and other stuff. The analysis determines the range of sentences. If you listen to oral arguments in criminal cases (the 7th and 8th Circuits have podcasts of their oral arguments–others may too), most of them involve this sort of thing. If the judge had the wrong range, the appellate court might remand the case for the judge to reconsider the sentence with the right range.
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The guidelines are no longer binding on judges, but the judge has to do some voodoo if she decides to depart from the guidelines. Some appeals involve claims that the judge ignored the guidelines without doing the appropriate voodoo.
Here are some examples, which I selected at random:
http://www.ca7.uscourts.gov/tmp/P10TAA2I.mp3
http://www.ca7.uscourts.gov/tmp/P10TCCF5.mp3
http://www.ca7.uscourts.gov/tmp/P10TFXM6.mp3
http://8cc-www.ca8.uscourts.gov/OAaudio/2009/6/083960.mp3
One of the basic guiding principles of the court system is that like cases should be decided alike. That’s an element of fairness to the accused.
If two guys agree to rob a store, and both go in, and both pull guns, and both steal the money and divide it evenly, as a general principle they should both get the same sentence. Even if the law says that the sentence ranges from 1 year to 10 years, it would be inappropriate for the judge to give one of them a 1 year term, and the other a 10 year term. They should get the same term.
And then there’s the accused’s past record. One basic factor in sentencing is that it’s progressive - the more crimes you commit, the longer your sentence will be. So in the case of two guys robbing a store, if it’s the first offence for one, and the 20th offence for the other, the court will be inclined to give a more serious sentence to the one with a long record.
Another factor to consider it that there’s a reason why the Legislature decided to give a range of sentence from 1 years to 10 years. Even with the same offence of armed robbery, there may be factors that make one armed robbery worse than another - so the judge is expected to reserve the high end of the range for the worst possible cases, and the low end for the less serious ones. For example, what if in one case a muscular 20 year old guy robs another muscular 20 year old guy while threatening him with a pocket knife, but in another case, a muscular 20 year guy robs a frail 80 year old guy, while threatening him with a machine gun? The effect of the crime on the victim is one of the factors that the judge is to consider.
And there there’s consistency within the jurisdiction. The range of sentence should be applied consistently to all accused convicted of the same offence within that jurisdiction, since the law should have equal application. If a judge in one county is known to give particularly light sentences, and another judge in a different county gives particularly heavy sentences, then the law isn’t being applied equally, and the appellate courts will correct both of them, for not following the range of sentences.
Sentencing is not an exact science, but it’s also not entirely left to the whim of the trial judge. The trial judge has to justify the sentence based on its consistency with the case law that establishes how the range of sentences given by the statute should be applied.
If you care to see just how complicated federal sentencing law is, this is a good place to start: http://www.ussc.gov/2008guid/TABCON08.htm
No thanks, I just ate. 
The legal realists were criticized for believing that legal decisions are determined by what the judge ate for breakfast. Why not lunch?
Because after lunch is when they hit the golf course. 
Incidentally, in Canada the “Crown” (that is government) can also appeal a sentence and ask for a harsher one. They can also appeal a not guilty verdict. In one famous case an abortion doctor was acquitted. The crown appealed and not only won, but the appeal court substituted a guilty verdict. This was appealed and the Supreme Court reversed that, but allowed a new trial. That resulted in a hung jury as did a third trial. The prosecution then gave up and essentially left abortion unpunished thereafter. I think the law was eventually repealed, but by then was a dead letter.
How does the appellate court correct the lenient judge’s sentences upwards?
Would the DA actually appeal a light sentence? I’ve never heard of that.
It can happen in the US. See:
http://www4.law.cornell.edu/uscode/uscode18/usc_sec_18_00003742----000-.html
And see, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=449&invol=117 ("The double jeopardy considerations that bar reprosecution after anacquittal do not prohibit review of a sentence. ")
Here’s a recent case involving the government appealing a sentence: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-5721