Less is More for the U.S. Sentencing Commission’s Policy Priorities … For Now
As Jonathan discussed in this post last month, the US Sentencing Commission “took a different tack” when setting forth proposed priorities and soliciting public comments for its work in the coming year:
The Federal Register notice of proposed priorities, published in June, was … more of an eager appeal for ideas from outside the Commission than an internally generated tentative list of areas of focus. It stated simply that, “[i]n light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act.” And then the notice went on and asked for public comment on what work it should prioritize to further those purposes and missions….. [T]he notice was open-ended and suggested the Commission was genuinely open-minded on what its research and policy agenda should be for the next few years. And in that spirit, the Commission, especially the Chair and his staff, proactively solicited input from across the federal criminal justice community.
As Jonathan also noted, the request for public comment generated a whole lot of input. The Commission in July released this pdf document reprinting comments, which ran over 1200 pages and was described as just a “representative sample of public comment.” The comments ran the gamut from quite specific calls for reforms to a particular guideline provision (eg, “address the disparity between how the guidelines treat ice (pure) meth and meth mixture”) to quite general advice for broad review of enduring sentencing issues (eg, “the role of active drug addiction in drug and other crimes should be a focus of study”). The wide array of commenters and comments defy summarization; collectively, they highlight how nearly every conceivable matter related to criminal law and policy could, and perhaps should, be a focal concern for the work of the US Sentencing Commission.
On August 8, the Commission responded formally by publishing this Federal Register notice setting forth “its policy priorities for the upcoming amendment cycle.” To call this statement of priorities, which is set forth below, very broad and very vague is arguably an understatement:
While the Commission received a wide array of comments, there were a clear set of themes among them, including the following:
(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.
While the Commission will continue to evaluate all the ideas it has received, the Commission is 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). In prioritizing some themes, the Commission may submit related guideline amendments to Congress not later than May 1, 2025. In prioritizing other themes, the Commission may use issues for comment, workshops, roundtables, conferences, and other tools to solicit input about what, if any, action the Commission should take in the future.
For those of us involved in submitting comments, this accounting of broad and vague “themes” which “the Commission is committed to prioritizing” can be seen as both encouraging and frustrating: encouraging because nearly every recommendation from commenters might fall within one (or more) of the stated “themes”; frustrating because it remains unclear which themes the Commission may prioritize and how. In his prior post, Jonathan urged the Commission to provide a “reasoned explanation [of] its reaction to the recommendations and its choices on how it will proceed.” Such a “reasoned explanation” has not yet been provided, and many stakeholders, experts, and advocates who contributed comments likely are asking, “Now what?”. The Commission must provide a more robust elucidation of its goals, as well as a more detailed and public accounting of its gameplans, to ensure all the diverse and dynamic “outsiders” remain engaged and involved in the Commission’s coming efforts to turn its vague priorities into concrete policy proposals.
While urging the Commission to provide more details and delineation about its priorities and plans, I can see practical wisdom and shrewdness in its initial “less is more” approach to this year’s priorities. For starters, since regaining its quorum only two years ago, the Commission has been extraordinarily active in proposing and advancing consequential (and sometimes controversial) guideline amendments over its first two amendment cycles. In addition, over this time, the Commission on its website has assembled so many important new resources and has continued producing so many data reports and analyses that it can be challenging for even the biggest sentencing nerds, like me, to keep up. With all this activity over its first two years, perhaps it is wise for the Commission to, in a sense, take a deep breath and review and reflect on what it has already accomplished and on how its recent work fits into the broader federal criminal justice reform landscape.
As for the broader federal criminal justice reform landscape, even a bipartisan Commission designed to be insulated from day-to-day politics must (and should) be attentive to the reality that a major federal election takes place during its 2024-25 amendment cycle. It is certain that a new president will be inaugurated in January 2025, but it is uncertain who that will be or what could be the new administration’s federal criminal justice priorities. Similarly uncertain is which party will control the two houses of Congress and whether any possible federal statutory reforms could become a legislative priority, Especially with political rhetoric about crime heating up in the 2024 election season further contributing to policy uncertainties in the coming months, perhaps it is shrewd for the Commission to, in a sense, take a deep breath and for now discuss only in broad and vague terms its plans and goals for the months ahead.
While seeking to make sense of the Commission’s approach to its priorities, I believe it would be particularly wise and shrewd for the Commission to make good on a suggestion appearing in the last sentence of its Federal Register notice: “the Commission may use issues for comment, workshops, roundtables, conferences, and other tools to solicit input about what, if any, action the Commission should take in the future.” Other than public hearings and educational events, it has been many, many years since the Commission has conducted any major public “workshops, roundtables, conferences” or like events where a wide array of stakeholders and experts can discuss, advance, and advocate new visions for, and approaches to, the Commission’s work and priorities. The extraordinary array of commenters and comments addressing the Commission’s priorities demonstrates how many different groups and individuals have dynamic and creative thoughts about the Commission’s work and responsibilities. The Commission is uniquely positioned at this distinctive moment to conduct multiple “workshops, roundtables, conferences” – perhaps with a separate event focused on each one of its six stated “themes” – that would not just foster continued robust input from outsiders concerning the sound policy development of the Commission’s stated priorities, but also advance broader public understanding of the many challenges posed by sentencing rules and decision-making.