Reasoned Agency Decisionmaking and the Upcoming Announcement of the U.S. Sentencing Commission's Policy and Research Priorities for the 2024-25 Guideline Amendment Year
Next week, the U.S. Sentencing Commission will meet in Washington to decide on its policy and research priorities for the current guideline amendment year, ending May 1, 2025. Customarily, the Commission begins its amendment year in the spring with a private commissioner and staff retreat, at which the commissioners discuss their own research and policy priorities while reviewing correspondence, court rulings, staff presentations, prisoner petitions, and other relevant materials they have accumulated over the previous year or so. Then, following the retreat, the Commission usually publishes in the Federal Register a list of “proposed priorities” for the amendment year and asks the public to comment on its listed priorities. That list is typically a bit granular, but at the same time a bit sparse. For example, in June 2023, the Commission listed among its proposed priorities —
(1) 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.
(2) Promotion of court-sponsored diversion and alternatives-to-incarceration programs by expanding the availability of information and organic documents pertaining to existing programs (e.g., Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program) through the Commission’s website and possible workshops and seminars sharing best practices for developing, implementing, and assessing such programs.
(3) Examination of the Guidelines Manual, including exploration of ways to simplify the guidelines and possible consideration of amendments that might be appropriate.
(4) Continuation of its multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.
(5) Continued examination of the career offender guidelines, including (A) updating the data analyses and statutory recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements; (B) devising and conducting workshops to discuss the scope and impact of the career offender guidelines, including discussion of possible alternative approaches to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense”; and (C) possible consideration of amendments that might be appropriate.
(6) Examination of the treatment of youthful offenders under the Guidelines Manual, including possible consideration of amendments that might be appropriate.
(7) Implementation of any legislation warranting Commission action.
(8) 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).
(9) Consideration of other miscellaneous issues coming to the Commission’s attention.
(10) Further examination of federal sentencing practices on a variety of issues, possibly including: (A) the prevalence and nature of drug trafficking offenses involving methamphetamine; (B) drug trafficking offenses resulting in death or serious bodily injury; (C) comparison of sentences imposed in cases disposed of through trial versus plea; (D) continuation of the Commission’s studies regarding recidivism; and (E) other areas of federal sentencing in need of additional research.
This year, the Commission took a different tack. The Federal Register notice of proposed priorities, published in June, was much more bare bones. It 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. “In particular, the Commission invites the public to recommend specific avenues of research or policymaking that would allow the Commission to fulfill the statutory goals [of the Sentencing Reform Act]. Commenters are encouraged to provide text of proposed amendments, policy statements, or research agendas that might address the relevant priority. Commenters are welcome to propose lines of work that could be completed in the upcoming amendment cycle, as well as priorities that might require multi-year efforts to complete.”
The Commission indicated that it would continue some of the work that was ongoing from previous amendment years, implement any enacted legislation, and resolve circuit conflicts. But otherwise, the 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.
Not surprisingly, a lot of individuals and organizations responded to the enticing solicitation with their thoughts and recommendations on what the Commission’s priorities should be. Far more judges, academics, researchers, and citizens wrote in with their ideas then in previous years. Twelve hundred pages worth of ideas. And those thoughts and recommendations cover a broad spectrum of research and policy topics, from the narrow and mundane to the broad and imaginative.
For example, Senator Raphael Warnock (D-GA) urged the Commission “to adopt a broad and ambitious agenda to end mass incarceration.” The Criminal Law Committee of the Judicial Conference asked the Commission, among other things, “to examine the guidelines’ emphasis on drug purity for methamphetamine offenses.” Judge Terrence Boyle (EDNC) asked the Commission to abandon the advisory guideline system altogether. “I sentenced defendants in criminal cases prior to the effective date of guideline sentencing on November 1, 1987, and my opinion is that the prior rules for sentencing were fairer more just [sic] than either mandatory guidelines or advisory guidelines.” Judge Leo Sorokin (DMA) suggested a new departure provision for successful completion of problem-solving courts. The Autism Innocence Project recommended that the Guidelines recognize “autism as a significant mitigating factor in sentencing decisions.” The Justice Department suggested “a Chapter 3 enhancement applicable to cases in which the defendant used artificial intelligence during the commission of an offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense.” And Lorenzo Suttles, who has been incarcerated the last 23 years, recommended that the Commission “periodically visit and host town halls with both the staff and inmates of the Federal Bureau of Prisons, and encourage[d] The White House and Congress to do so as well.”
These are just a very small sample of the dozens and dozens of submissions made to the Commission in response to its broad call for comment and suggested direction. The 1,200+ pages make for great reading (at least if you’re a sentencing nerd). And I believe the Commission did a great thing in opening up the priority-setting process and soliciting such wide-ranging input. It is an example of good government at work.
But as with most good deeds, this one will not go unpunished. The Commission now owes it to those who took the time to answer its call, and also to Congress, the Executive Branch, and the public at large, to share with all of us, in some detail and reasoned explanation, its reaction to the recommendations and its choices on how it will proceed. The Commission should, in light of everything it has now heard, set forth how — and why — it has charted a research and policy development course not just for the coming nine months, but for the next several years. This is also part of good government and good agency practice — see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) — and I hope it will be the written product of the Commission’s August 8th meeting.
Professors Berman, Chanenson, and I submitted our recommendations to the Commission too, which you can find immediately below. We come down on the “broad systemic review” side of the recommendation spectrum, and we urge the Commission to engage in what the American Law Institute’s Model Penal Code: Sentencing refers to as an “omnibus review;” an examination of the Guidelines system, over the coming few years — and based on the experience of the last four decades — in order to forge a new era of federal sentencing policies and practices for the years ahead.
The Commission deserves credit for inviting us all in to be part of its research and policy making process. But now, the Commission ought to transparently share with us what it thinks of all the ideas it has received and how it intends to shape the coming decades of federal sentencing research and policy. This is part of what “reasoned decisionmaking” for an administrative agency is all about. Michigan v. EPA, 576 U. S. 743, 750 (2015).
July 8, 2024
The Honorable Carlton W. Reeves, Chair
United States Sentencing Commission
One Columbus Circle, NE
Suite 2-500, South Lobby
Washington, DC 20002-8002
Dear Judge Reeves:
We hope this finds you, yours, and all at the Commission well.
This submission is in response to the U.S. Sentencing Commission’s Notice of Proposed Priorities (“Priorities”) published in the Federal Register.[1] We are three longtime students and teachers of federal sentencing law and policy, and we genuinely appreciate the opportunity to share a few thoughts with you and the Commission as you develop your research and policy agenda for the current guideline amendment year.
We were gratified to read in the Priorities that in this 40th anniversary year of the Sentencing Reform Act, the Commission will reflect on its core goals, the progress made towards meeting them, and what actions might be taken, now and in the future, to further them. In this amendment year, we will also be celebrating the 20th anniversary of the Supreme Court’s decision in United States v. Booker.[2] We believe these significant anniversaries present an ideal time not just for big and broad reflection, but also for charting a course for a new era of federal sentencing policies and practices based on the experience of the last four decades.
When and how the federal sentencing guidelines were first developed, they necessarily reflected particular views about sentencing decision-making after decades of federal sentencing that was rightly decried as “lawless.”[3] Then, for nearly two decades, federal practitioners, probation officers, and judges struggled to understand and apply a flush of new and unnecessarily complex sentencing laws, guidelines, and case law that led to legally mandatory and presumptive outcomes, some which were disconcertingly severe. The Booker ruling came along and functioned to make the guideline system less binding at sentencing, but at least a third of the federal criminal cases are still adjudicated in the shadow of some mandatory minimum sentencing statute.
The Commission has forcefully documented, going back three decades, the injustices, disparities, and other harms and distortions of sentencing subject to problematic mandatory minimum sentencing provisions. And Congress has partially listened to the Commission’s advice. In 1995, it enacted the so-called “safety valve” exception to drug offense mandatory minimums, and in 2018, expanded its reach; in 2010, Congress eliminated a mandatory minimum for simple possession of crack cocaine and reduced the number of crack cocaine trafficking offenses subject to a mandatory minimum; in 2018, Congress reduced the severity and limited the applicability of additional mandatory minimums for certain gun and drug offenses; and Congress has not enacted any new mandatory minimum – or increased the severity of any existing mandatory minimum – in many years. And perhaps most significantly, Congress has never seriously considered making the federal sentencing guidelines fully – or even partially – presumptive again since the Booker ruling.
Put simply, 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. We urge this Commission to deliver the heart of that advice once again, perhaps by producing an updated version of the mandatory minimum report issued in 1991 or perhaps by producing a series of smaller reports highlighting the problems of the most commonly applied mandatory minimums (with particular attention to their impact on people who exercise their constitutional right to trial).
We think it is critical, though, that such a report on mandatory minimum sentencing statutes be accompanied by an examination of how advisory guidelines, as applied after Booker, is 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.[4] Although that remains a critical consideration – especially if Congress will be asked to reduce or eliminate mandatory minimums in an environment where just 42.4% of sentences are imposed within the guideline range – it is just one component of the sentencing goals Congress set forth in the Sentencing Reform Act.
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. As the Commission continues to examine Booker’s impact, we urge more specific research on 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 this examination, the Commission ought to consider the potential virtues and vices of different possible iterations of an advisory guideline system.
We believe if the Commission thinks broadly about how advisory guidelines function and seeks to fully reflect the Bookerchanges with an explicit intent to further the goals of the Sentencing Reform Act – and we recognize that this may take several years to conceptualize, draft, and acclimate with the whole court family – it can fundamentally change federal sentencing for the better. We think that doing so in combination with an examination of mandatory minimum sentencing statutes, a political consensus can be developed to make systemic reforms to the Guidelines and to mandatory minimum sentencing statutes, a reality that could lead to a more effective sentencing system, a simpler one, one that effectively nudges sentencing judges towards more fully and consistently achieving the goals of the Act, and one that leads to more justice.
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When Booker was decided, many of us thought it would be the decisive turning point towards significant changes in the structure and functioning of federal sentencing law and policy. Especially once it was clear Congress was content to allow an advisory guideline system to remain in place, we were hopeful that significant innovation, and even experimentation, could and would follow. The Court’s decision made a fundamental change in federal sentencing law that we thought would prompt some systemic reexamination – and then reform – to the existing sentencing laws and Guidelines. And we expected, and hoped, that post-Booker reforms would seek to fix some of the most thoughtful and oft-repeated criticisms of the federal sentencing guidelines as a system within a reasonable timeframe.
Perhaps understandably, because the severity and rigidity of the Guidelines was seen by many as a major vice, some, including Congressman Bobby Scott of Virginia, concluded that “Booker was the fix.”[5] While Scott and others had long been among the most vocal critics of the Guidelines and strongest voices for reform, after the Court’s decision, they thought the decision would, in and of itself, bring about desired changes in sentencing outcomes. Their hope was that the advisory system would enable and encourage judges to use the broadened sentencing discretion to significantly soften both the severity and rigidity of the federal sentencing system while retaining reasonable levels of uniformity. And, reflecting an era when new laws and guidelines were typically proposed seeking to making federal sentences more severe, they were also concerned that any direct reforms by Congress or the Sentencing Commission at that time would seek to reinstate presumptive guidelines or create new mandatory minimum statutes, both of which they saw as harmful for federal sentencing.[6]
In an article for an upcoming issue of the Federal Sentencing Reporter, Jonathan looks at how Booker fits into the history of federal sentencing reform and then briefly reviews whether Booker was indeed “the fix.” The article concludes that today, the Guidelines Manual looks an awful lot like it did in January 2005, when Booker was decided, dictating sentencing outcomes within a narrow range based almost entirely on offense conduct and through detailed and legally complex formulas. The Manual still tells courts to consider fully most offender characteristics only in extraordinary cases, which is in tension with, if not directly contrary to, 18 U.S.C. § 3553(a)’s instructions to sentencing judges. Because the Supreme Court has directed that the Guidelines are still to serve as the starting point and initial benchmark for sentencing decision-making, the Manual forces judges to struggle through how to integrate statutory law that unambiguously mandates that offender characteristics be considered in every case with rules from the expert sentencing body urging their general disregard.[7] Booker gave sentencing judges the freedom to follow their own path and policy determinations on not only these offender issues, but a host of other statutory considerations that come up in nearly every case. Because the Commission has never globally amended its Guidelines to reflect its changed role and the ways in which judges must apply section 3553(a), it is not hard to understand why we see patterns of sentencing decision-making that do not reflect a clear and cogent development of a sound common law of sentencing in the federal system. And it is not surprising that we see growing disparities in sentencing outcomes among federal district courts.
Before Booker, federal sentencing was criticized for being overly complex, overly harsh, overly reliant on quantifiable offense factors like drug quantity and loss, and for helping to create a system of ever-growing plea bargaining and the “vanishing jury trial.”[8] Twenty years after Booker, the system is even more complex. It is still overly reliant on quantifiable factors, even in cases where such quantification serves as a poor proxy for blameworthiness or dangerousness. There are fewer jury trials today, not more, and perhaps even less certainty about the sentencing process, even though the Booker decision was expressly predicated on vindicating the Fifth Amendment’s due process right and the Sixth Amendment’s jury trial right.[9] The average federal sentence has increased since Booker.[10] And there is more unwarranted disparity in sentencing among the districts and within districts, with some courts following the Guidelines Manual regularly and others following it rarely.[11]
Was Booker the fix? At first blush, it doesn’t appear to be so, at least with the wisdom of hindsight that follows from the last two decades of sentencing experience in federal courts. With the 20th anniversary of Booker and the 40th anniversary of the Act now upon us, the time is right for the Commission to think not only about the extent to which the current Guidelines system is achieving the purposes of the Act, but also once again about Booker and the role of the Commission and the Guidelines post-Booker. We believe the Commission should do more than reconsider isolated vestiges of the pre-Booker regime that some find outdated, such as departures. Rather, we recommend that the Commission take a holistic look at the entire Guidelines enterprise. This will require research into the effects of Booker certainly, but much more too, including how behavioral economics and the best understanding of how psychology, heuristics, guideline design, and other factors involved in guided decision-making might help the Commission restructure an advisory set of guidelines to nudge judges better towards greater consistency, proportionality, and the other goals of sentencing. (The Commission here could and should also seek to draw insights from both state and international sentencing experiences; the federal system is unique in many ways, but there are important lessons to be drawn from how judges in a wide array of legal systems look to craft fair and effective sentences.)
This moment calls for, and may be uniquely well-suited, 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. And, 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.”[12]
Taking on this vital but daunting project is worth doing in part because we think a political consensus can be developed to make genuine structural changes that will lead to greater justice. The possibility of creating a political coalition – including a unanimous Commission – for such comprehensive reform is real. It comes from the promise of less unnecessary litigation and more fair sentences; identifying the most violent offenders and greater attentiveness to Sixth Amendment principles; greater consistency in the sentencing process and more individualized sentencing; and overall, a more just federal sentencing system for all. We think a better, politically viable sentencing system can be crafted, and we view the Commission as a capable and essential leader in the path toward this better system.
We include a draft of Jonathan’s article. And we will plan to share with you all of the commentaries we gather in the upcoming Federal Sentencing Reporter.
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A quick word on artificial intelligence (AI) with a recommendation that the Commission explore how it might integrate AI tools into its work.
Since the launch of ChatGPT in 2022, there has been much hype over how AI can and will transform almost every aspect of our society. While there are reasons to be cautious about such hype, we also believe the Commission ought to explore the possible use of AI in its operations, and in particular how AI might improve its analytics and research function.
Since its creation, the Commission has looked to documentation of actual judicial decisions as a starting point for establishing sentencing policy and guideline formulas. The first Commission based the original Guidelines on a statistical analysis of pre-guidelines sentencing practices, as documented in court files. It analyzed data drawn from thousands of cases sentenced in 1985 and additional data from older cases. That work depended on Commission staff painstakingly reviewing individual case documents one at a time and extracting data on aggravating and mitigating factors that significantly correlated with increases or decreases in sentences. It was a heroic human effort that formed the bases for specific offense characteristics for each type of crime and other elements of the Guidelines. But at the same time, this effort left major gaps in our understanding, for example, not being able to identify patterns in the use of offender factors in sentence determinations. And AI tools now have the potential to dramatically expand and improve this Commission function.
The Commission has used optical recognition software to expand its work extracting data from its document collection. We think moving to AI tools is the natural next step in the evolution of the Commission’s research work. These tools have the potential to significantly expand our understanding of criminal behavior, judicial, prosecutorial, and defense practices, and what works in corrections too.
The Commission’s document collection includes millions of indictments, plea agreements, presentence reports, and more. Together with data from outside sources related to community programming, supervision operations, recidivism, family circumstances, employment, just to name a few, application of AI has the potential to lead to far greater understanding of what works to promote public safety, reduce reoffending, successfully integrate those who have offended back into the community, all at far lower human and fiscal costs.
In short, we think the opportunities are vast for the Commission to improve criminal justice outcomes and increase the delivery of justice using these tools. We strongly encourage the Commission to explore, in a transparent way, how such tools could be used to improve its work.
Just last month, the Council on Criminal Justice, of which all three of us are members, convened a high-level gathering of industry and criminal justice experts, including Jonathan, to explore how AI is already being deployed in the criminal justice system and the risks and potential rewards of further use and deployment. There is growing expertise at the Council on AI in criminal justice, with a recognition of both the promise and risk associated with it. The Commission may want to reach out to the Council – as well as technical experts and federal criminal justice stakeholders – as it considers all of this and how AI can lead to greater justice.
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We hope some of these suggestions will be helpful to you. Please let us know if there’s anything more we might do to assist in your work. We are grateful for this opportunity to weigh in. And please know that we are pulling for your success.
Sincerely,
Jonathan J. Wroblewski
Director, Semester in Washington Program
and Lecturer on Law
Harvard Law School
Douglas Berman
Newton D. Baker-Baker & Hostetler Chair in Law
Executive Director, Drug Enforcement and Policy Center
The Ohio State University Moritz School of Law
Steven Chanenson
Professor of Law
Faculty Director, David F. and Constance B. Girard DiCarlo
Center for Ethics, Integrity and Compliance
Villanova University Charles Widger School of Law
[1] U.S. Sent’g Comm’n, Proposed Priorities for Amendment Cycle, 89 Fed. Reg. 48029 (June 4, 2024), https://www.federalregister.gov/documents/2024/06/04/2024-12244/proposed-priorities-for-amendment-cycle.
[2] 543 U.S. 220 (2005).
[3] Marvin E. Frankel, Criminal Sentences: Law Without Order (1973).
[4] U.S. Sent’g Comm’n, Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005-2017, Jan. 2020; U.S. Sent’g Comm’n, Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005-2017, Jan. 2019.
[5] See, e.g., Bobby Scott, United States v. Booker: System Failure or System Fix?, 160 U. Pa. L. Rev. Online (2011).
[6] Id.
[7] U.S. Sent’g Comm’n, Guidelines Manual, Chapter 5, Nov. 1, 2023.
[8] See, e.g., Frank O. Bowman, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315 (2005); The National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, July 2018.
[9] U.S. Sent’g Comm’n, 2003 Sourcebook of Federal Sentencing Statistics, 2004; U.S. Sent’g Comm’n, 2023 Sourcebook of Federal Sentencing Statistics, 2024.
[10] Id.
[11] U.S. Sent’g Comm’n, Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005-2017, p. 7, Jan. 2020; U.S. Sent’g Comm’n, Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005-2017, p. 7, Jan. 2019.
[12] Model Penal Code: Sentencing § 8.09 (describing “the need for global self-assessment of the sentencing system at regular intervals.”).