Help wanted: Revived commission could spark criminal justice changes

Key judicial agency hasn’t had enough members to function for years

Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.
(U.S. Courts)
Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission. (U.S. Courts)
Posted March 29, 2021 at 6:00am

Congress used a sweeping criminal justice overhaul law in 2018 to allow federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons — and the COVID-19 pandemic prompted an unprecedented flood of thousands to try that over the past year.

But federal judges did not have any of the guidance that typically would ensure a new law is applied as evenly as possible nationwide, from courtroom to courtroom. The judicial agency that sets such policies hasn’t had enough members to function for years.

“What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.

That could soon change. The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.

President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.

Advocates say sentencing is a crucial consideration when it comes to overhaul. A bipartisan group of senators on Friday reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it.

Sakira Cook of The Leadership Conference on Civil and Human Rights said a renewed sentencing commission could build on work during the Obama administration that helped lead to a reduction in the prison population. Cook pointed to a commission report from that era that showed members of Congress how Black and Latino people are incarcerated and charged at higher rates related to mandatory minimums than their white counterparts.

The Leadership Conference has urged the Biden administration to nominate sentencing commission members who “reflect the diversity of thought, and experience, and expertise that we think is critical to ensuring that work moves us in the direction of transformation, moves us toward refining and leaning into best practices of the day,” Cook said, “and not harkening back to old tropes around violence and criminality and things that have been used to thwart progress on ending mass incarceration.”

Bipartisan concerns

The commission must include two additional federal judges, and no more than four members can be from the same political party. The Senate must approve the members.

The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of Donald Trump’s presidency. Breyer is the brother of Supreme Court Justice Stephen G. Breyer, and his term on the commission expires in October.

Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches. But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.

Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.

The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.

Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.”

But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”

Durbin and Grassley have proposed smaller changes to the sentencing, while New Jersey Democratic Sen. Cory Booker has introduced a broader bill called the Next Step Act. The room for bipartisan agreement on such bills is still unclear.

“I wonder if this is a moment when everybody wants to sort of step back and think about, do we need sentences that are this high?” said Mary Price, general counsel of Families Against Mandatory Minimums. “Do we need 43 levels, do we need all these enhancements?”

It took Congress years of negotiations to put together a compromise criminal justice overhaul bill that Trump signed in 2018. Among other provisions, it gave judges more freedom to hand down sentences below the mandatory minimum for nonviolent drug offenders, reduced mandatory minimums associated with the three-strikes law.

The law also eliminated a provision that prosecutors used to “stack” firearm charges for long sentences for first-time offenders. And it makes retroactive a 2010 law that reduced the sentencing disparity between crack and powder cocaine.

‘Extraordinary and compelling’

The law also allowed prisoners to directly ask for so-called compassionate release, the issue that prompted federal courts to debate what the guidelines required judges to do when it came to COVID-19.

When the U.S. Court of Appeals for the 4th Circuit reviewed the situation, it ruled in December that the only guidance from the sentencing commission came from before the First Step Act was passed. Where the commission does not act, the appeals court ruled, “then courts make their own independent determinations” of what constitutes an extraordinary and compelling reason to release a prisoner.

There’s no clear timeline for when the White House might announce any nominees for the commission or when the Senate might move them through the confirmation process, particularly when there are more high-profile competing priorities such as judicial nominees.

And even if a new commission were up and running by the summer, the earliest any official actions could be finalized is November 2022 because of the schedule for how it proposes changes to guidelines and must wait to see if Congress stops them, said Douglas Berman, a law professor at Ohio State University who focuses on criminal law and sentencing.

“There’s still the even bigger and broader question of just, will a new commission be eager to actually do things right away, hit the ground running this way?” Berman said. “Or might they say we need to study stuff more? We need to, you know, have a big conversation about, you know, how the entire federal system works?”

Commission in crisis

Breyer said the Judicial Conference is currently considering a list of judges to submit to the White House for consideration, and he anticipates that the White House will put forward a slate of six nominees.

Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said.

“And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added. That can lead to unequal treatment from courtroom to courtroom, he said, and sentences can be less a national standard and more idiosyncratic to each judge.

There are other problems with the guidelines that the commission has been unable to address. For example, one section allows shorter sentences for defendants who plead guilty and spare the government the expense of a trial.

But judges in different parts of the country have split on whether that applies to defendants who had challenged the legality of some of the evidence against them.

A defendant in Oklahoma or Oregon would still get a shorter sentence. A defendant in Louisiana or Vermont would not.

“For the most serious offenses, the reduction can shift the Guidelines range by years, and even make the difference between a fixed-term and a life sentence,” Supreme Court Justice Sonia Sotomayor wrote this month in one case.

But the Supreme Court declined to take up the issue. Sotomayor, joined by conservative Justice Neil M. Gorsuch, wrote a few paragraphs in an order to emphasize the need for clarification first from the commission.

“The Sentencing Commission should have the opportunity to address this issue in the first instance,” Sotomayor wrote, “once it regains a quorum of voting members.”