As the calendar turns to July, it seems a good time to express my frustration that we are now nearly six months into the Biden Administration and there has not yet been any nominations to the US Sentencing Commission. As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has been only somewhat functional for only a small portion of the last five years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade. The USSC staff has completed lots of useful research and reports in the interim, but the FIRST STEP Act’s passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional in terms of formal amendments or agendas in recent years.
Of course, the federal sentencing system can and does march on without a fully functioning USSC. But the lack of Commissioners is a significant lost opportunity for this significant agency to this particular moment. When functioning well, the USSC can and should be part of a hearty and healthy dialogue with Congress and the Justice Department, especially when these political branches are interested in criminal justice reforms. As I stressed in a recent post, “Timely reminder of US Sentencing Commission’s decarceral potential … when it is functional,” even small changes to the US Sentencing Guidelines by the USSC can have a huge impact on criminal justice practices and the federal prison population. Moreover, as noted in this recent Bloomberg Law piece, headlined “Near-Vacant Sentencing Panel Gives Biden Chance for Fresh Start,” the USSC these days could and should be thinking about a lot more than small guideline changes:
Six of seven possible seats on the U.S. Sentencing Commission remain empty, giving President Joe Biden an opportunity to remake the panel at a time when overhauling criminal justice is a rare example of bipartisan consensus…. In addition to taking up issues that have been unaddressed, a new set of commissioners could help review the decades-old sentencing guidelines wholesale to reflect a modern understanding of criminal justice, observers say.
“It is a great opportunity for the administration,” said Mark Osler, a law professor at the University of St. Thomas in St. Paul, Minnesota, who focuses on policy surrounding clemency, sentencing, and narcotics. “Because if you want a great shot at really creating reform in the federal system, the guideline commission is one place to start.” And the bipartisan consensus on the need to overhaul sentencing gives a new commission “a chance to do things like simplify the guidelines,” Osler said….
During the 2020 presidential race, Biden’s campaign recommended tasking the Sentencing Commission with “conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges.”
The guidelines were drafted 40 years ago at a time when the emphasis was on punishment rather than rehabilitation, said Nancy Gertner, a former federal district judge in Massachusetts and a senior lecturer at Harvard who teaches law and neuroscience and has written about sentencing. Since then, the connection between the guidelines and mass incarceration is clearer and people have a better understanding of the science behind the issues that impact crime, such as mental health, she said. “In my view, these are guidelines that need to be reexamined and reevaluated,” Gertner said.
Back in February, I wrote a commentary, “Reviving the U.S. Sentencing Commission,” which noted that the USSC has historically been dominated by persons with prosecutorial backgrounds; I also lamented that the USSC now needs six new confirmed members to get back to full strength and at least three new commissioners to even be somewhat functional. At that time, I did not reasonably expect to see needed nomination to the US Sentencing Commission until at least some Circuit and District Judge nominees were put forward. But yesterday, Prez Biden announced his fifth round of judicial nominees. The USSC, which is also in the judicial branch, needs to get appointments soon or there will be reason to fear we will not get confirmed Commissions in place until 2022 or even later.
I especially hope the frustrating wait for nominations will be rewarded soon with some terrific nominees for the Sentencing Commission who will be committed to thinking big about how to make federal sentencing sounder. Especially in light of the FIRST STEP Act and other national criminal justice developments, we need not just new US Sentencing Commissioners. The country could and would benefit from a truly new US Sentencing Commission committed not just to monitoring and managing the federal sentencing guidelines, but also to being a powerful advocate for humane, evidence-based sentencing systems throughout this great nation. Notably, what I wish to imagine today is what Judge Marvin Frankel ably urged a full 50 years ago when he first set out his ideas for a “Commission on Sentencing” at the very end of Criminal Sentencing: Law Without Order:
The uses of a commission [should be as] to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today…. The need for change is clear. Our justly proud awareness that “we the people” have the power should carry with it a corollary sense of duty. It is our duty to see that the force of our state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.
A few prior recent related posts:
- Any guesses for when we might again have a fully functioning US Sentencing Commission?
- New commentary calling for Prez Biden to revive the US Sentencing Commission
- Might we be getting closer to (needed) new nominees for the “frozen” US Sentencing Commission?
- Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
- Timely reminder of US Sentencing Commission’s decarceral potential … when it is functional