Comment by Dan Arthur Kusnetz
In December of 1980, the United States Supreme Court, in United States v. DiFrancesco, upheld a federal statute which authorized the government to appeal the imposition of a lenient prison sentence. The defendant challenged the statute as being violative of his constitutional guarantee against double jeopardy. The Second Circuit had dismissed the government's appeal on double jeopardy grounds, but the Supreme Court, reversing, concluded that appealing the sentence did not violate the double jeopardy clause. The statute in question authorized the imposition of an extra sentence above the term otherwise authorized for the felony, upon convicted felons who had been certified to be "dangerous special offenders." In addition to authorizing increased sentences, the statute allowed either the defendant or the United States to appeal the additional sentence. Dangerous special offender statutes are the first, and as yet the only, statutes which allow the prosecution in a criminal case to appeal a sentence which it considers to be too lenient. The DiFrancesco case was the first case specifically to challenge this new governmental right.
The DiFrancesco opinion assumes added significance in light of the proposed Federal Criminal Code Reform Act now pending before Congress. The proposed Code attempts, among other changes, to reform the entire area of sentencing for federal crimes. Both the House and Senate versions of the bill provide for presumptive, narrow sentencing guidelines to be established by a sentencing commission. Judges may impose sentences which are outside the guidelines, but in order to do so, they must state detailed reasons for such deviations. For sentences which are harsher than the applicable guidelines, both versions of the Code provide for a defendant's right of sentence appeal; however, only the Senate version includes a corresponding right for the government appeal in instances where the sentence is more lenient than that contained in the Code's guidelines.
One of the major arguments against including a governmental right of sentence appeal, as does the proposed Federal Criminal Code, is that such appeals are violative of the double jeopardy clause. The DiFrancesco opinion, upholding the constitutionality of the statutorily authorized governmental sentence appeal before the Court, appears to settle the issue. This comment will examine the established double jeopardy jurisprudence, up to and including the DiFrancesco case, to determine if the Court's opinion in DiFrancesco can be read as a wholesale approval of the right of governmental sentence appeal, as contemplated by the proposed Federal Criminal Code. In addition, this work will evaluate the sentencing provisions of the proposed code in light of existing due process analysis, social policy and sentence theory doctrines.
About the Author
Dan Arthur Kusnetz.
Citation
56 Tul. L. Rev. 693 (1982)