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Sentencing is a complex task that involves judicial officers imposing sentences in the first instance and deciding appeals from those judges in certain circumstances. Both trial and appellate courts are usually invested with some discretion as to the nature and quantum of sentence that may be imposed. Appellate jurisdiction varies widely between countries reflecting disparate approaches to discretion, differences in the grounds of appeal, in the deference paid to trial judges and the role of prosecution in the appellate process. While most jurisdictions give defendants the right to appeal against sentence, they differ in the ability of prosecuting authorities to appeal against sentence. In some jurisdictions there is considerable asymmetry between defendants’ and prosecution’s appellate rights. Historically, defendants’ rights of appeal preceded, and have been more extensive those of the prosecution, and traditionally, the balance has been tilted in favor of defendants. However, in a number of jurisdictions, this imbalance has been questioned. The principal arguments against prosecution appeals have centered on the concept of double jeopardy, which has long applied in substantive criminal procedure. Since the early 1980s the analogy with substantive double jeopardy has been questioned or rejected as has the double jeopardy principle itself. Justifications for the principle such as the anxiety and distress suffered by the defendant, the need for finality, the possibility of double punishment, and the abuse of power have all been re-assessed. The case for equal or symmetrical rights rests on the basis that the law requires that error, whether in favor of the defendant or the prosecution, should be corrected as a matter of justice. A balanced appellate process can ensure consistency in, and the adequacy of, sentencing standards, provide guidance to sentencing judges, and increase victims’ and public confidence in the criminal justice system.

The juxtaposition of two major recent legal developments—the emergence of victims’ rights, and the increasing prevalence of plea bargains in the criminal process—raises profound dilemmas. Ever since the end of the 18th century, criminal proceedings have been conducted by states against defendants, based on the traditional view that crime is an offense against the state. Hence, victims’ participation has been curtailed under different legal systems. In adversarial (Anglo-American) systems, based on common law, the parties dominate the proceeding, and the onus is on the prosecution to prove its case; while in inquisitorial systems (continental), the judge dominates the proceedings, thus reducing the responsibilities of the parties. Although most states display mixed adversarial and inquisitorial characteristics, three systems exemplify different approaches to victims’ rights in plea agreements. The federal US system—the adversarial legal system in which the victim movement began its first steps; the French system—a civil law system, where victims are allocated a formal, albeit limited role; and the Israeli system—a juryless common-law-based system, where professional judges make both legal and evidentiary decisions. In the Anglo-American systems, victims were marginalized, and this lack of standing resulted in one of the more important legal developments of the 20th century—the struggle for victims’ rights. The victims’ movement is a grassroots movement, a social phenomenon that has led to significant legal changes. Consequently, a new perception has seemingly been incorporated into adversarial criminal law systems, whereby victims’ interests should be taken into account. The federal U.S. law enshrined victims’ rights in 2004, and in Israel the major legislation of victims’ rights took place in 2001. In the French system, since the early 20th century, victims have been formally recognized as partie civile—the civil side to the criminal process. The victims have a standing and they can claim compensation. The question of victims’ role in plea agreements is of particular importance, since in recent years, plea agreements have become the rule rather than the exception in Anglo-American criminal proceedings. In 2004, the French law also created a mechanism akin to plea agreements. In the federal U.S. system, victims can express their opinion regarding a plea agreement, and they can apply for a writ of mandamus, should any of their rights be disregarded by the prosecution. Under the Israeli system, victims of severe sexual and violent offenses may speak to the prosecutor and express their views, albeit not in court. In the French system, the victims’ role in plea agreements is limited to claiming compensation. Despite these developments, victims’ rights in plea agreements may still be partial or ineffective. For example, under both U.S. and Israeli law, the victims’ objection to such an agreement may have a very limited effect on the criminal process. Moreover, the prosecution has been granted immunity from any civil lawsuit following infringement upon victims’ rights. Under the French system, the victims’ involvement is limited to an appeal regarding the compensation she has been awarded.