(concurring).
I concur in the result.
But, would urge my brethren to adopt the ABA Standards, Appellate Review of Sentences (Approved Draft, 1968). To me to uphold a sentence simply because it fell within the limits provided by law is a disservice to the accused, the public, correctional administrators, and to ourselves. To discharge our awesome responsibility in such a baneful fashion makes us mere rubber stamps for trial courts.
The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 25-26 (1967) reported:
“One of the most serious aspects of the disparity problem is the imposition of sentences which are grossly excessive.
“The most important contribution of appellate review is the opportunity it provides for the correction of grossly excessive sentences. Although appellate review will not totally eliminate the problem of disparity of sentences, by reducing the peaks or disparity, it would narrow the range in which individual differences among judges can affect the length and type of sentences.
“Moreover, appellate review aids the development of a uniform sentencing policy within a jurisdiction. It tends to cause both trial and appellate courts to give sustained consideration to the justification for particular sentences. And the opinions of appellate courts in modifying excessive sentences can provide a body of law to guide trial courts in all cases.” (Emphasis added.)
The two major objections to appellate review of sentences stem from a matter of principle on the one hand and a practical point on the other. On principle, it is argued that sentencing is a discretionary matter involving a judgment, not a question of law such as appellate courts are used to handling. In practice, permitting review of sentences would inundate appellate courts with frivolous appeals caused by the fact that the defendant would have nothing to lose.
Neither objection is a valid basis for denying a review of the sentence. The books are replete with cases where we review the exercise of discretion by trial courts. But more important, Congressman Celler has well put the answer to the “opening of the flood gate objection” based upon the burden that review would place upon our ap*568pellate courts. “Objections on that basis,” he has observed, “completely evades the issue of whether an appeal procedure is needed to insure the quality of justice that should characterize our courts.” Appellate Review of Sentences, a Symposium at the Judicial Conference of the United States Courts of Appeal for the Second Circuit, 32 F.R.D. 249, 309 (1962). Here, the accomplice was sentenced to seven years, and the defendant who stood trial was sentenced to sixteen years for the same offense. As former Senator Paul Douglas (Dem. Illinois) said, “The facts are not nearly as important as the person believes them to be.”
While there may have been justification for the sentence imposed, the defendant, under the circumstances in evidence, will be hard pressed to believe that he was not discriminated against simply because he insisted upon his innocence and demanded trial.