Document Type


Publication Date

Winter 2009


Federal criminal appeals, Criminal sentencing appeals, United States v. Booker, Empirical legal studies


Criminal Law | Criminal Procedure | Jurisprudence | Litigation


Although few dispute the appellate process's centrality to justice systems, especially in the criminal context, debates over rationales supporting the appellate process's vaunted status in adjudication systems persist. Clearly, it is difficult to overestimate error correction as a justification for an appellate system. Of course, other rationales, such as a desire for lawmaking and legitimacy, also support the inclusion of a mechanism for appellate review in an adjudication system.

Though comparative latecomers, appellate courts are now ubiquitous in the American legal landscape—appellate review exists in state and federal systems for criminal convictions. Despite general agreement and widespread understanding that access to appellate review is a critical component of a comprehensive judicial system, the outcomes of appellate courts and, equally important, how to interpret the outcomes, are comparatively less well understood and developed in the research literature. In particular, the distribution of appeals outcomes as well as explanations for the distribution warrant additional scholarly attention.

To address this scholarly gap, this Article assesses federal criminal appeals from an empirical perspective. Modest in ambition and scope, this Article seeks only to map the broad empirical contours of federal criminal appellate activity in the United States. The initial research question focuses on the basic results of appellate reviews of federal criminal cases. Existing data germane to this question, while far short of thorough and definitive, provide some helpful guidelines and trends. The second research question—what one can responsibly infer from the results—is far more complicated and illusive and, therefore, limited. Important limitations to existing data, as well as the influence of selection effects, contribute to the second research question's complexity and illusiveness. While existing data sketch out the general contours of what our federal appellate courts are doing in the criminal setting, how to interpret these data remains unclear.

Publication Citation

Published in: Marquette Law Review, vol. 93, no. 2 (Winter 2009).