Making the The Justice Safety Valve Act of 2013 palatable to cynics and skeptics

Cynics and skeptics of the The Justice Safety Valve Act of 2013 worry that without firm statutory minimums some federal district judges will go wild.  Their concerns are not without foundation.

What if the Act were left entirely as it is proposed but the appellate standard of review was lowered and set by statute.  That is, anytime a district judge sentenced below the statutory minimum under the Act, the standard of review on appeal would be de novo for both facts and law.

Just a thought.

RGK

One response

  1. I think such an alteration, at this time, would be a waste of the appellate court’s time.

    First, we need to understand the magnitude of the problem. What is the number of cases, annually (or any other useful interval) currently where judges sentence below the guideline, where such sentencing is allowed (yes, this includes state courts as well as Federal)?

    Of that per centage, what is the rate at which those so sentenced later (a term to be defined) commit a serious crime (which I’ll define for concreteness’ sake to be armed robbery or more)?

    If we parse the data further, we can also identify judges who routinely sentence too lightly and judges who are significantly better than the now-known norm.

    Until we have answers to this sort of question, we don’t have any reason to question judges’ (or a judge’s) performance beyond some sensational anecdotes. But anecdotes aren’t data.

    On the larger question, rules can be very useful, but so can the case-by-case judgment of humans. I think trying to set hard numbers (and then trying to find ways to re-inject acceptable judgment) over-engineers the problem.

    The need for rules for the sake of rules is driven more by today’s Procrustean litigation than it is by reality.

    Eric Hines

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