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Washington v. Creekmore11/6/1989
d make the same decision. The judge adheres to his decision and the matter is appealed. The Court of Appeals would be hard pressed to say that no reasonable judge would make such a decision in the face of the affidavits. But its responsibility for review does not evaporate. It retains the responsibility and authority to determine
whether or not the facts and circumstances justify the decision.
Appendix 1 lists a number of reasons approved by appellate courts as justifying an exceptional sentence. Appendix 2 lists all reasons used by trial courts to justify an exceptional sentence, whether approved or not. The list of reasons, already long, continues to grow. By itself, this list of reasons is not out of harmony with the SRA. However, in conjunction with the absence of any appellate control over the duration of sentences, it becomes so. The majority finds no case reversing a sentence as clearly excessive because of duration. Majority, at 864. It accepts this with equanimity. To me it suggests that the appellate courts have effectively read "clearly excessive" out of the SRA.
Discretion in criminal sentences is a function of the number of reasons approved as justifying an exceptional sentence as one variable, and the approved durations of exceptional sentences as the other variable. With no control of duration, the total amount of discretion increases as new reasons are approved. The present standard for review of duration and the presently approved reasons together generate excessive individual discretion. The purpose of the SRA was to provide structure to the trial court's exercise of discretion, to promote uniformity in sentencing and, ultimately, to build a common law of sentencing. By requiring that punishment be "commensurate with the punishment imposed on others committing similar offenses", the SRA promotes the concept of proportionality. It encourages respect for law by requiring "punishment which is just". Under the current policy, once the threshold of an acceptable reason justifying an exceptional sentence is passed, the trial court is permitted "unbridled
discretion" as to the duration of the sentence. This is not the purpose of the SRA.
In an ideal judicial world, the same defendant would receive the same sentence regardless of which of the 156 superior court judges presided. While that ideal cannot be achieved, the SRA is an effort to approach such ideal by structuring discretion, and should be interpreted to that effect. The abuse of discretion standard as applied to duration of exceptional sentences does nothing to realize this goal. Rather, it ensures that in the area of exceptional sentences, the judge before whom the defendant appears will make an enormous difference.
In my view, it is the responsibility of the appellate court to decide whether a sentence is "clearly excessive" by exercising its own judgment as to the relationship between the reasons given and the duration imposed; not by reference to what some hypothetical reasonable judge would not do. If a sentence of 20 years is imposed and the reviewing court finds the sentence to be "clearly excessive", it should say that 20 years is clearly excessive and that 15 years is appropriate in light of the reasons found by the trial court. This may seem strange, but once the duration of a sentence is regarded as a legal conclusion to be drawn from the reasons given, it will be recognized to be consistent with the appellate process.
I find it hard to understand how a court could ever recognize a sentence as being clearly excessive if it does not have a standard of what is an appropriate sentence. Such a standard, if unexpressed, should be made explicit. An
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