A Thought Experiment: Imagine the U.S. Sentencing Commission’s Policy Priorities if Kim Kardashian and Lil Wayne Filled the Two Commission Vacancies

Some disruptive, out-of-the-box thinking might be just what the Commission needs

Each year in May, with the end of one guideline amendment year comes the beginning of another. By statute, the U.S. Sentencing Commission can send guideline amendments to Congress only from the beginning of the year until May 1^st. Being composed of human beings, the Commission inevitably submits amendments just as the amendment window is closing, in the waning days of April. And then the commissioners begin a new guideline amendment year, typically by meeting away from D.C. for a “retreat” of sorts to discuss policy priorities for the amendment year ahead. For a variety of reasons, the annual amendment cycle has become the defining feature of the Commission’s work, and commissioners and staff have found comfort in its rhythm and repetition, like rewatching an old movie or listening to songs from when we were young over and over again.

To sentencing nerds who have never been to one, a Commission retreat sounds scrumptious. Those uninitiated often imagine a miniature version of the Aspen Ideas Festival or Bill Clinton’s Renaissance Weekend, where commissioners head to an exotic location to engage in freewheeling discussions about the ideas and issues that will shape the world of sentencing and criminal justice for years to come. Big ideas. Cross-discipline brainstorming and exploration. Late-night mind-expanding conversations, perhaps over a Kentucky bourbon on the veranda of a grand hotel surrounded by southern live oak trees dripping with Spanish moss; or maybe rather there’s an expanse of tall grasses leading to oceanside dunes and the sea beyond.

Well, I’m here to burst your bubble. I’ve been to more than a dozen of these retreats, and often the most stimulating conversation of the week is with the taxi driver on the way from the hotel to the meeting location. [In a future essay, I’ll share one of those extraordinary conversations I had with a taxi driver heading to a Commission retreat in Burlington, Vermont.] To be fair, at the last retreat I attended, there was indeed some bourbon, but it led only to talk about whether bourbon can be distilled outside of Kentucky and the best recipe for the mash.

Most years, with rare but some recent exceptions, the retreat is structured by the Commission staff, who end up also having an outsized role in shaping its outcome. The retreat typically begins with the staff reminding everyone of the previous year’s priorities and any unsolicited ideas for new priorities that may have come across the Commission’s transom. The staff also provides reports on training and education activities of the past year, plans for the coming year’s training, and the Commission’s data collection and analysis work.

When it comes to the Guidelines themselves, not surprisingly, most of the staff are fans of its basic structure and are comfortable with a policy agenda that involves changing the edges of the Guidelines, a guideline tinker here and maybe a guideline tinker there. This flows naturally from the staff’s genuine expertise on the federal Guidelines. They know the Guidelines better than just about anyone. That and the fact that most commissioners have other jobs and interests feeds into the staff’s significant role. And it all adds up to a Commission agenda and role that are rather bounded by tradition and history and limited vitality for the agency and its mission.

For the retreat, the staff creates a first draft of the coming year’s priorities from the past priorities that were not fully addressed. To get a sense of this, take a look at the priorities the Commission just published a few weeks ago for the 2025-26 guideline amendment year. I’ve included in bold items that this Commission – and I mean the Commission chaired by Judge Reeves – has previously indicated as a policy priority:

The Commission invites comment on the following proposed priorities for the amendment cycle ending May 1, 2026, including comment on any additional priorities commenters believe the Commission should consider in the upcoming amendment cycle and beyond, and comment proposing specific amendment text or research agendas that would address a given priority:

(1) Examination of how the guidelines can provide courts with additional guidance on selecting the appropriate sentencing option (e.g., imprisonment, probation, or fine), and possible consideration of amendments that might be appropriate.

(2) Further examination of the penalty structure for certain drug trafficking offenses under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)), including (A) consideration of possible amendments addressing the purity distinctions for methamphetamine provided in the Drug Quantity Table and related application notes; and (B) consideration of other miscellaneous issues pertaining to drug trafficking offenses coming to the Commission’s attention, such as possible statutory changes relating to fentanyl.

(3) Examination of §2B1.1 (Theft, Property Destruction, and Fraud) and related guidelines to ensure the guidelines appropriately reflect the culpability of the individual and the harm to the victim, including (A) reassessing the role of actual loss, intended loss, and gain; (B) considering whether the loss table in §2B1.1 should be revised to simplify application or to adjust for inflation; (C) considering the application and impact of the victims table in §2B1.1 and adjustments in Chapter Three, Part A (Victim-Related Adjustments), relating to victims; (D) considering the application and impact of adjustments in Chapter Three, Part B (Role in the Offense) relating to role in the offense; and (E) possible consideration of amendments that might be appropriate.

(4) Continued examination of the career offender guidelines, including (A) evaluating the impact, feasibility, and uniformity in application of alternative approaches to the “categorical approach” through workshops, field testing, and updating the data analyses set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements; and (B) possible consideration of amendments that might be appropriate.

(5) Examination of whether the guidelines provide appropriate adjustments for good behavior, including examination of whether §3E1.1 (Acceptance of Responsibility) and §5K1.1 (Substantial Assistance to Authorities) fully account for the variety of ways in which an individual may manifest acceptance of responsibility and provide substantial assistance, and possible consideration of amendments that might be appropriate.

(6) Continued exploration of ways to simplify the Guidelines Manual, including (A) examining the operation of the grouping rules in Chapter Three, Part D (Multiple Counts); (B) examining the operation of specific provisions of Chapter Four, Part A (Criminal History); (C) examining the operation of §5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment); (D) evaluating infrequently applied specific offense characteristics and adjustments provisions throughout the Guidelines Manual; and (E) possible consideration of amendments that might be appropriate.

(7) Assessing the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. 3553(a)(2) and considering any appropriate responses including possible consideration of recommendations or amendments.

(8) Implementation of any legislation warranting Commission action.

(9) Resolution of circuit conflicts as warranted, pursuant to the Commission’s authority under 28 U.S.C. 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344 (1991).

(10) Consideration of other miscellaneous issues coming to the Commission’s attention.

Because the Commission gives the public little idea of why it didn’t complete work on the holdover priorities, it’s tough to know how to react to their republication or the request for comment generally. Is the Commission more serious about the holdover priorities this time around? Is there a new path to success for them?

When I read the new 2025-26 policy priorities a few weeks ago – the ones not in bold: guidance on sentencing options, economic crimes, and making the trial penalty worse by expanding the discount for cooperating with the government – candidly, I was underwhelmed. First, the Commission just eliminated dozens and dozens of departure provisions from the Guidelines Manual and all the guidance they represented on sentencing options. It makes the priority on sentencing option guidance perplexing, because the Commission did this mass deletion just two months ago. Here’s an example of what the Commission eliminated, which is precisely “guidance on selecting the appropriate sentencing option” and which seemed to me rather sensible before the Commission removed it from the Guidelines:

Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.

The Commission just voted to eliminate this at its last public meeting. And it also voted to eliminate other similar guidance on selecting the appropriate sentencing option. Is it now going to spend the next ten years or so repromulgating the same or similar guidance but just without using the word “departure?” I genuinely wonder what this priority is all about.

On economic crimes, the Commission has considered reforms here on numerous occasions, yet has never chosen to fundamentally change the basic flaw of §2B1.1, the guideline applicable to most economic crimes: that it is driven primarily by loss and doesn’t adequately capture defendants’ culpability beyond the loss calculation. The American Bar Association (ABA) and many others have pointed this out to the Commission for years and years. The ABA even drafted a new and better economic crimes sentencing guideline. The Commission just had a chance to recognize the same fundamental flaw – an overreliance on a quantitative factor – in the drug guideline this past amendment year, but chose not to.

And expanding the trial penalty . . . well, I’m not sure where that suggestion came from.

So how should reformers react to the proposed priorities? Is there any way for the Commission to think in a new way and beyond the tinkering with the Guidelines that seems to be its fate? Or maybe reformers ought to rethink their belief that there is substantially more to do to reform federal sentencing. Are the Guidelines – and federal sentencing more generally – actually pretty much as good as it gets? Has criminal justice reform gone the way of D-E-I? Or is there still serious reform to be done? And should that reform include not just changing the Guidelines but other steps too?

I was a bit flummoxed. Until I saw this . . .

It’s from a couple of months ago. My mind genuinely expanded and my imagination was triggered. It starts out this way –

“I’m really good focused on like beauty, fragrance, Skims, law school . . .” I love it.

Kim Kardashian has been an advocate for criminal justice reform for many years, and she has a phenomenal record of influencing the President to grant clemency and support justice reforms. She knows something about the attention economy, too; how to engage the public and political leaders; and how to influence public opinion and persuade. Same with Lil Wayne. He’s had a few run-ins with the justice system and received a pardon from President Trump several years ago after he was charged with a firearms crime. Here he is with the President after they met to discuss criminal justice reforms.

And now here’s a thought experiment: what if we started to think a little differently about the Sentencing Commission, its work, and who could be part of it? What if we even started thinking a little differently about who could be a member of the Commission? What if the President nominated Kardashian – and Wayne too – to the Commission? Do you think the proposed priorities and its 2025-26 agenda would still look like what the Commission just published? What might that Commission want to focus on? What possibilities – beyond guideline tinkering – would open up for the Commission to change policy and the way people, both among the public and public officials, think about the criminal justice process if Kardashian and Wayne were sworn in by Chief Justice Roberts or Justice Alito or Justice Jackson (that would be quite a sight, wouldn’t it)?

A few thoughts run through my head: with Kardashian and Wayne, there might actually be a super-majority on the Commission in favor of advocating with Congress to eliminate some existing mandatory minimum sentencing statutes. Maybe the Commission could produce a series of Tik-Toks and a documentary about it to try and influence public opinion and the President’s. They could focus on, and tell the stories of, men and women who were victimized by crime and men and women who have been unnecessarily locked away for too long. Maybe there could be a reality TV show produced by the Commission? A concert tour? Maybe even new ways to think about culpability and how to structure sentencing decision-making? Maybe even a conference and new proposals on second look sentencing, Kardashian’s special policy focus and expertise?

Let your mind wonder. And send your ideas to the Commission. Comments on the proposed priorities are due back to the Commission by July 18. You can use this comment portal. And send a copy of your ideas to the President and post them in the comments to this Substack too.

Some disruptive, out-of-the-box thinking might be just what the Commission needs. And with Kardashian and Wayne on the Commission, just imagine what that next Commission retreat might be like.