Facing a New Political Reality: A Five-Part Post-Election Agenda for the U.S. Sentencing Commission
We are publishing this essay on Tuesday rather than our usual Monday out of respect for veterans and the celebration of Veterans’ Day. We are grateful to all those – including many in our own families and communities – who have served our country in the armed forces. I live a stone’s throw from Arlington National Cemetery, and I am reminded each time I pass it by, with the indelible image of hundreds of thousands of gravestones, of the sacrifice that so many have made so that we can enjoy the freedom and prosperity we do. Our nation – including our armed forces – has not avoided mistakes over the years, some with tragic consequences. But the courage, sacrifice, honor, and heroism shown by so many ordinary Americans – our fellow citizens (and some non-citizens, too) – deserve our recognition and gratitude. Thank you for your service.
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Like the rest of us, last Wednesday morning, the members of the U.S. Sentencing Commission awoke to a new political reality. Donald Trump is now the President-elect; the Republican caucus will control the Senate; and while leadership of the House of Representatives has not been decided, the House is also likely to be controlled by the Republicans, if only narrowly.
With this – and with the very real possibility that the Commission will only have five voting members by the end of the year with the expiration of the holdover status of two of the commissioners – the Commission faces a very different internal and external political environment.
For some who have sat on the Commission, especially judges, there is a temptation to see the Commission’s work as apolitical; a group of experts trying to divine some transcendent truth on the punishment that fits the crime. I’ve never been a believer in this view of the Commission’s work. In the late 1990s, while a staff member at the Commission, I wrote a paper with several colleagues in the wake of the bipartisan congressional rejection of the Commission’s effort to eliminate the crack/powder disparity: Better Sentencing: A Report on Sentencing Policy Development. In it, we recognized that the Commission’s role is to balance different, and often conflicting, purposes of sentencing. “This is, we believe, an inherently political act that involves making important normative judgments, and we think it is important to recognize it as such.” There is not one “correct” answer to sentencing policy questions, nor can such questions be answered empirically. “Data can assist in the policy development task, but data cannot appropriately balance the goals of sentencing . . . The proper balance,” we wrote, “is a product of shared values not empirical science.” And how best to assess shared values and balance sentencing goals necessarily must be informed by ever-changing crime realities and the input of the democratic process.
Many in Washington are in the midst of trying to figure out how the new political reality brought on by that democratic process will impact their policy world and what changes in strategy or focus will be required to most effectively deal with the new reality. In many ways the Commission is fortunate (and was shrewd), for it was quite opaque a few months ago when it finalized its policy priorities for the current amendment year. It laid out only “themes” that it would focus on, based on the wide spectrum of stakeholder input it solicited and then received –
(1) Simplifying the guidelines and clarifying their role in sentencing, including revising the “categorical approach” for purposes of the career offender guideline and possibly amending the Guidelines Manual to address the three-step process set forth in §1B1.1 (Application Instructions) and the use of departures and policy statements relating to specific personal characteristics.
(2) Reducing the costs of unnecessary incarceration.
(3) Promoting public safety.
(4) Improving community supervision.
(5) Expanding the Commission’s use of expertise, evidence, and best practices.
(6) Promoting evidence-based approaches to offense and individual characteristics.
The Commission stated that it would continue to evaluate all the ideas it had received, but that it was “committed to prioritizing – during the upcoming amendment cycle and beyond – one or more of these themes, as well as implementing any legislation warranting Commission action and resolving circuit conflicts 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).”
I suspect the vagueness of the priorities may have been a product of the divisions in the Commission that have been exposed over the last two years, divisions that unfortunately fall on partisan lines. What is undoubtedly important, though, is that these divisions have been noticed in the Senate, leading to the introduction by Senator Kennedy of the Consensus in Sentencing Act – which would require a five vote and bipartisan majority of the Commission to advance any amendment to the sentencing guidelines – and the 11-10 partisan vote on the renomination of Commissioner Gleeson. All of this leaves the Commission in a somewhat precarious position.
So, what should the Commission do now? I think first and foremost, the commissioners must have candid conversations with themselves and with each other about whether they can – or even want to – agree on a strategic direction for the Commission and for federal sentencing, and then second, try to agree on a proposed action agenda for the next year or two. They have heard from stakeholders far and wide. They know the wide spectrum of views those stakeholders represent. But they have not articulated – at least publicly and as a united Commission – an overarching direction for federal sentencing policy or even a set of defined policy principles to guide the Commission.
It’s time for reflection and then action. The political winds shifted last week. Before long, President Trump is likely to appoint two new members to the Commission, and the winds will shift still further. The commissioners need to decide whether they want to come together, and if so, what a unified agenda would look like.
I’ve said before that I think collaboration at the Commission is better than division. Back in September, I wrote in this space that “[u]nlike the Supreme Court, which is in fact the final word on many of the issues that come before it, the Commission is decidedly not. The Commission is a product of Congress exercising delegated power. It is answerable to Congress. It is a political, policymaking institution, Mistretta notwithstanding. Moreover, in times of public concern about crime rates – like 1995 and 2024 – the political branches, and Members of Congress in particular, will be paying attention and will react if the Commission strays too far.”
Most of what the Commission has done in the last two years has been done unanimously. But in 2023, the new Commission chose to act on compassionate release by a sharply divided 4-3 vote. Less than two weeks ago, the Third Circuit, in U.S. v. Rutherford, ruled that the amended compassionate release guideline “conflicts with the will of Congress,” and that the Commission overstepped its authority. There is now a circuit split on this issue, which is almost certainly headed for the Supreme Court.
When the amendment was passed by the Commission, there was discussion of an alternative, first suggested in an attempt to find consensus. That alternative, in many ways, would have provided broader access to compassionate release than the version that was passed but would not have included “changes in law” as a ground for a sentence reduction. More on that in a future essay. For now, suffice it to say that the alternative was rejected, and the repercussions are being played out in slow motion.
If the Commission does come together, what might a consensus agenda look like? Does acting by consensus mean that the Commission cannot do anything “big” to reform the guidelines; that it is stuck with the basic framework and severity levels of the current guidelines? As I said weeks ago, I don’t think so. Consistent with the themes the Commission published as its final priorities, here is a five-part agenda the Commission could adopt for the next two years as it faces its new political reality –
1. An Omnibus Review of the Guidelines, Mandatory Minimum Sentencing Statutes, and Statutory Sentencing Levels More Generally
Back in July, long before anyone could possibly know the results of the election, Professors Berman, Chanenson, and I urged the Commission to undertake what the Model Penal Code refers to as an “omnibus review” of the Guidelines and of statutory sentencing provisions –
This moment [- the 20th anniversary of the Booker decision and the 40th anniversary of the enactment of the Sentencing Reform Act -] calls for reflection on the role of the Commission and that of the Guidelines. The overwhelmingly bipartisan First Step Act, followed by the bipartisan appointment of a full slate of Commissioners, signals in a powerful way that there is broad support in Congress for systemic, sizeable, and continuing sentencing reform. To advance that end effectively, this Commission may need to urge Congress to enact additional legislation to amend or even repeal various sentencing statutes. In other words, we recommend, and sincerely believe Congress would support, that the Commission engage in what the Model Penal Code: Sentencing refers to as an “omnibus review.”
Put simply, there are continuing concerns about mandatory minimum sentencing statutes and also about the efficacy of the Guidelines to achieve the purposes of sentencing. The Commission has often advised Congress that federal judges could and should be trusted to exercise effectively guided sentencing discretion wisely. Congress has followed that advice, but only partially.
As part of the review, the Commission could produce an updated version of the mandatory minimum report issued in 1991 highlighting the problems of the most commonly applied mandatory minimums. But it is critical that such a report on mandatory minimum sentencing statutes be accompanied by an examination of how advisory guidelines, as applied after Booker, are functioning to advance or undermine the range of sentencing purposes Congress has articulated. The Commission has already issued a series of reports focused on how Booker has reduced sentencing consistency. More is needed.
As we stated in our letter to the Commission some months ago, Booker has had a profound impact on federal sentencing in the 20 years since it was decided. Yet, in many ways, the structure of federal sentencing today looks very much like it did before the case was handed down. The Commission should continue to research how Booker has affected federal sentencing and whether reforms – including, but not limited to reforms to the role of departures in the Guidelines Manual – are needed to fully reflect the import of Supreme Court rulings and to better achieve the goals of the Sentencing Reform Act.
As part of such a review, the Commission could demonstrate how a reformed fraud and/or drug guideline could better achieve the goals of sentencing, including better targeting the most culpable offenders. It could also show how a simplified fraud and/or drug guideline could be a model for how the entire Guidelines Manual could be simplified and updated for a post-Booker world.
2. Improvements to the Bureau of Prisons and Community Supervision
The federal government runs the largest prison system in the country. It currently houses around 158,000 people. Back in July, President Biden signed the Federal Prison Oversight Act into law. The law passed 392 – 2 in the House of Representatives and unanimously in the Senate. Almost everyone supports this law.
The law creates an inspection regime for the Bureau of Prisons (BOP). It mandates that the Department of Justice’s Office of the Inspector General (OIG) conduct risk-based evaluations of BOP facilities. Inspections may be announced or unannounced, and higher risk facilities must receive more frequent inspections. The premise of the law is that federal prison should be both humane and effective at preparing those serving time in them for their return to the community. It is a natural follow-on to the First Step Act, signed by President Trump during his first administration.
The Sentencing Reform Act gives the Commission the responsibility to make recommendations on utilization of federal prison resources and their effectiveness. The Commission might propose steps to ensure that the Act is fully implemented. It might suggest that the House and Senate Judiciary Committee take turns holding quarterly hearings to hear from BOP and the Inspector General on progress being made on the Act and their recommendations on what must be done to improve conditions and programming in the BOP.
Similarly, the Commission could work with the Bureau of Prisons and the Criminal Law Committee of the Judicial Conference to review how community supervision could be improved. There is insufficient transparency and insufficient accountability around community supervision in the federal system and BOP operations, and Commission action could bring about a welcome change in these areas.
3. Controlling Federal Criminal Justice Spending
There aren’t many certainties when it comes to congressional action, but one thing that seems pretty certain for the 119thCongress is consideration of major tax and fiscal legislation. Most of President Trump’s 2017 $3.3 trillion tax law will expire at the end of 2025. And he has signaled in no uncertain terms that he wants to extend, and even expand the tax cuts. It will be one of the most important tasks of the new Congress, with sweeping tax hikes on the line if Congress fail to act.
The challenge for those writing the tax legislation is that with the country at nearly full employment and GDP growing at two to three percent, the federal government is still running a $1.8 trillion deficit. It seems inevitable that significant spending cuts across the federal government are in offing. With federal enforcement and prison spending amounting to tens of billions of dollars every year, there will very likely need to be cuts in these areas too. The Commission could work with the new administration and Congress - using its unique data and analytic capabilities - to develop a plan to close prisons and cut the BOP budget, while at the same time improving conditions at the BOP facilities. In 2013, there were more than 219,000 federal prisoners under BOP custody. Today, there are less than 158,000. Yet, there are more federal prisons today than in 2013.
4. Expanding President Trump’s Signature First Step Act Achievement
The First Step Act, signed into law by President Trump, was the single biggest sentencing and corrections reform legislation in a generation. From the relevant recidivism data released to date, the Act has been a success. At the same time, the law undoubtedly can be improved. Efforts are already underway, for example, to reform the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) risk assessment system that BOP staff uses to measure an incarcerated individual’s risk of recidivism. Other reforms could improve the system further.
For example, many federal prisoners are excluded from the incentives to participate in recidivism reducing programming. Moreover, the way time credits are earned and how they impact the sentence to be served is almost indecipherable for the parties, the courts, and the public at the time of sentencing.
The Commission has already done great work in providing information on its website about the First Step Act and how the earned time credits system works. But it could go further. It could report on how the earned time credit system is being utilized, its effectiveness in keeping recidivism rates low, and how it might be expanded to incentivize all prisoners who will be returning to the community to participate in effective programming. The Commission could also work with the Criminal Law Committee of the Judicial Conference to have included in presentence reports an estimate of the PATTERN score and also the earned and good time credits that might be earned during the sentence, all in the service of bringing greater transparency and clarity to the system.
5. Increase the Size of the Commission and Require a Supermajority for Guideline Amendments
For many years, the Judicial Conference, the Federal and Community Defenders, and various interest groups have advocated adding a federal public defender to the Commission. As I wrote here some months ago, I agree with Judge Reeves that a diverse Commission membership helps give the Commission greater legitimacy. “It is difficult to overestimate the impact of this diversity on the agency’s work,” he wrote in a recent article. Yet there are many voices, beyond just the defense community, that should be added to the Commission to add to the diversity. The Commission ought to consider recommending to Congress adding a victim or victim advocate, a probation officer, a prison official, a formerly incarcerated individual, a state sentencing commission chair, and an assistant public defender to the Commission. And to encourage greater collaboration, it ought to also consider recommending to Congress to require a supermajority to amend the Guidelines.
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These are just a few suggestions for navigating the new political reality. There is much room for improvement in federal sentencing law, policy, and practice. And there is much interest among stakeholders and in the political branches around the work of the Commission. In light of last week’s election, the commissioners must decide what they believe in; whether they want to come together to improve federal sentencing; and if so, what an agenda might look like that could be supported across stakeholders and the political branches of government. This is not an easy task. But it’s a doable one. Let’s go!