I reported in this recent post that, on Friday afternoon, the US Sentencing Commission voted to promulgate a set of notable amendments to the US Sentencing Guidelines. I am still working my way through the substance of the amendments that were promulgated and I hope to share various thoughts on them in the weeks ahead.
But, as shown by the comments to my prior post, a number of folks are disappointed by what does not appear in the final amendments promulgated by the USSC. In this amendment cycle, the Commission had discussed a number of other possible amendments that did not get voted upon last week, and Tom Root in the comments and in this posting laments particularly that reforms to the meth guidelines did not advance. Tom also quotes at length from this new post by Jonathan Wroblewski from the Sentencing Matters Substack concerning the Commission’s latest work.
I always highly recommend a full read of everything at the Sentencing Matters Substack, and guideline fans will especially want to get the full scope of (former DOJ official and USSC ex-officio) Wroblewski’s assessment of the USSC’s actions. Here is just an incomplete (and spicy) taste:
The federal guidelines have been relentlessly criticized since they were first rolled out in the late 1980s. And that criticism has focused on Step One – the guidelines calculation – its false precision, complexity, reliance on quantifiable factors, lack of accounting for culpability factors, severity, and more.
So, when last spring, the Sentencing Commission announced, with great fanfare, an ambitious agenda of reform priorities for the 2024-25 guideline amendment year, many of us were very excited. Structural reform was long overdue.
In this 40th anniversary year of the Sentencing Reform Act (SRA), and 20th anniversary year of the Supreme Court’s decision in Booker, the Commission said it would be reflecting on the core goals of the Sentencing Reform Act, the progress that has been made towards meeting them, and what actions might be taken now, and in the future, to further them. It sounded like a big deal….
With expectations high, last Friday, the Commission’s amendment year came to an end with a rather short and quite opaque public meeting, unbecoming given the importance of the issues at stake and the process leading up to it. There were votes on amendment proposals for sure, but almost no explanation from commissioners for the consequential choices they were making. It turned out to be quite a disappointment.
First, there was no discussion of the Commission’s thinking and how it arrived at its decisions. The Commission spent two and half days in deliberations behind closed doors, and then in a public meeting of less than a half hour, explained nothing of how those deliberations resulted in the actions taken and not taken. Judges, practitioners, Members of Congress, advocates, inmates, family members, and academics spent countless hours developing and submitting written comments to the Commission, and there was virtually no explanation of how those comments were considered. Second, the Commission in the end did not even address the categorical approach. No matter how many times the Commission places the issue on its priorities – and it has over and again for over a decade – it just can’t seem to find a fix. And again, no explanation.
Third, the Commission did not address the unwarranted disparities in methamphetamine sentencing identified by numerous commentors. This seemed especially perplexing given Judge Reeves’ own detailed decision in United States v. Robinson, holding that the methamphetamine purity enhancement had ceased to have any meaning. And again, no explanation. Fourth, the Commission made no fundamental reform to the drug guideline or to Step One of any other guideline. It did take steps to ensure that drug offenders who play a mitigating role are not over-punished. But the Commission has tried this before – numerous times, in fact – and it is far from clear that the steps taken will make a significant difference in drug sentencing policy.
The guideline formulas of Step One which have been the basis of the fundamental critique of the federal guidelines were left almost entirely alone. And then, this headline decision. Rather than consolidating Steps Two and Three of the sentencing process to simplify the Guidelines and incorporate Booker into them while still guiding courts in whether to sentence individual defendants outside that recommended range or at a particular point within the range, the Commission simply eliminated Step Two and then also eliminated all guidance on what now will be the second and final step for sentencing after calculating the guideline range.
Under the new guideline architecture, courts will continue to calculate the guideline sentencing range under Step One. They will continue to use the flawed guideline formulas found in many guidelines, especially the drug and fraud guidelines. But now, when the courts move to the judging part of the sentencing process, they will be left without any guidance. Courts will take Step Two on their own. I’m not sure why the Commission thinks this will better achieve the statutory purposes of sentencing reform. I’m not sure why this won’t result simply in greater unwarranted sentencing disparity. It strikes me that eliminating the guidance has made the sentencing process worse.