A question about the Justice Safety Valve Act of 2013

In an earlier post regarding the Justice Safety Valve Act of 2013, I suggested that it might be a good idea to make the standard of review on appeal from sentences under the statutory minimum less deferential so as to insure that we trial judges don’t go too nuts.  Does anybody know whether there is any discussion about the standard of review on appeal under the Justice Safety Valve Act of 2013?  If someone has an answer, I would be most interested in knowing the details.  While I am all for lessening the impact of statutory minimums in some cases, I am also very, very concerned that our zeal to do the right thing may have the unintended consequence of injecting even more unwarranted sentencing disparity into the calculus.


4 responses

  1. With all due respect, I would rather have trial courts go nuts applying the SV than allow appellate courts to go nuts reversing us as they did for many years post Booker when we did reasonable variances. And brother RGK. I take a little friendly exception at the phrase going nuts, because after all given the current standard of review we can only go “reasonably” nuts 🙂

  2. Fair point on the current standard of review.

    With regard to the FSA of 2013, I want a “safety-valve” for the safety-valve–a balanced approach between the sentencing judge and the reviewing court. Otherwise, the supposed exchange between the trial judge and the appellate judge that was supposed to end up in a reasoned common law of sentencing to fill in the gaps in the Sentencing Guidelines gets skewed by what appears to be nearly unbounded discretion at the trial level, and a “look the other way” form of review at the appellate level. If an appellate panel honestly believes that my sentence below a minimum is just plain wrong, and they articulate reasons why that is so, I think that would be a good thing. Thus, I am not troubled by a de novo standard of review for law and fact on virtually all sentencing questions.

    All the best.


  3. The quasi-libertarian in me has to wonder if the whole question of sentencing guidelines, sentencing below (or above) the guidelines’ limits, appellate review and reverse, etc isn’t really a problem that flows from over-regulation of a problem that doesn’t necessarily exist.

    It seems to me that a judge, while upholding the text of the law, also needs to represent the standards of the community in which he operates, even though a Federal judge necessarily must bring the Federal government’s perspective to the local standards (a Federal locale, vice a State or county, if you will). Community standards will vary greatly across communities, so appropriate sentencing must vary greatly across communities. I see no problem with that, even at a Federal level.

    Of course that’s all theoretical and does nothing for the practical problem that presently exists.

    Eric Hines

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