Who Cares If the Sentencing Commissioners Get Along?

Earlier this year, you may have read former Supreme Court Justice and former U.S. Sentencing Commissioner Stephen Breyer’s guest essay in the New York Times about his friendship with his fellow justices on the Court.  Breyer nostalgically recounted pleasant lunches with his colleagues – even after contentious conferences – taking part together in a performance of “Die Fledermaus,” playing bridge, and singing Cole Porter tunes around a piano. 

For those of us blessed to have even once experienced these kind of joyous workplace relationships – and I, myself, was back at the Main Justice Building just last week celebrating one – we too remember them fondly.  In fact, I have some wonderful memories of sharing times with the federal Sentencing Commission and its staff over the last thirty years.  Two of my favorites happen to be with Justice Breyer’s younger brother, Charles.  He and I took in baseball games at Citi Field and Oracle Park some years ago, watching his beloved San Francisco Giants.  They are little treasures I carry with me always.

But so what?  Who cares?

Justice Breyer wrote his essay because he thought this kind of congenial workplace at the Court meant “that we could listen to one another.”  And such better listening, he surmised, “increased the chances of agreement or compromise.  It means that the court will work better for the nation that it serves.”  Breyer thought that it matters that the members of the Court can and do get along well personally.

Famed Supreme Court journalist Linda Greenhouse isn’t so sure.  In her own essay in the Times on the subject, Greenhouse pushed back.  “What counts is not how the justices treat one another but how they treat the claims of those who come before them.”  Greenhouse quoted Judge David Tatel, who recently retired from the U.S. Court of Appeals for the D.C. Circuit. “Judicial collegiality,” he writes, “has nothing to do with singing holiday songs, having lunch or attending basketball games together.  It has everything to do with respecting each other, listening to each other, and sometimes even changing our minds.”

Breyer’s essay and Greenhouse’s response raise many questions that have unique consequence for the federal Sentencing Commission, and that neither really answers.  Most importantly, I think, is whether agreement or compromise on the Court or at the Sentencing Commission is a good thing?  What’s wrong with 5-4 Court decisions or 4-3 Commission decisions driven by principle?  Why are 9-0 or 7-0 votes better?  Or are they?  Beyond that, I wonder whether listening does in fact increase the chances of agreement or compromise?  One can be polite and a good listener and still stubborn (principled?) about one’s views on policy or the law.  And what about whether sharing a ballgame together leads to better listening?  And whether the answer to these questions differ for a Supreme Court justice and for a sentencing commissioner. 

Thirty years ago, when I first joined the Sentencing Commission staff as Deputy General Counsel, I confronted some of these questions.  As fate would have it, my first assignment with the Commission in 1994 was to work with Lou Reedt — the sociologist, not the musician; and by the way a joyous and generous soul – to develop a report on federal cocaine sentencing policy and the 100-to-1 crack/powder ratio.  The Commission had discovered through its research operation that those convicted of crack cocaine offenses were almost all African-American and were sentenced to far longer imprisonment terms than those convicted of similar powder cocaine offenses. 

Reedt and I – and many others at the Commission – wrote a good report, which the Commission accepted and issued under its name unanimously in February 1995.  The Commission concluded in the report that the 100-to-1 quantity ratio that defined the crack/powder disparity could not be justified; that the racial disparities were unwarranted; and that the guidelines could account for differences in aggravating factors associated with individual cases without a broad-brush sentencing scheme based solely on drug type and quantity.  These unanimous conclusions still hold up today.  Perhaps unanimity has played some role in that.

Just a few months after issuing the report, the Commission met in what is now the Mecham Conference Center on the ground floor of the Thurgood Marshall Federal Judiciary Building to consider how to implement the findings from the report into the sentencing guidelines.  After just a bit of debate, the Commission voted 4-3 to equalize the quantity-based guideline penalties for crack and powder offenses.  There wasn’t much preparation for the vote – I think it came as a surprise to most of the commissioners – and there wasn’t much policy craft in the process leading to the vote.

The Justice Department immediately issued a press release criticizing the Commission’s action:

The Justice Department will urge Congress to reject a recommendation by the United States Sentencing Commission that would dramatically reduce the punishment for trafficking in crack cocaine.

Attorney General Janet Reno said, "I strongly oppose measures that fail to reflect the harsh and terrible impact of crack on communities across America."

. . .

Although the Justice Department has recognized as a policy matter that an adjustment in the current penalty structure might be appropriate, it has maintained that any such adjustment must reflect the greater dangers associated with crack as opposed to cocaine powder.

The new Republican majority in Congress was more than happy to join the Clinton Justice Department in opposing the Commission vote.  A few months later, President Clinton signed the bill overturning the Commission’s decision into law.  It is the only time in the Commission’s history that legislation has been enacted rejecting a Commission guideline amendment. 

It would be 15 more years before President Obama would sign the Fair Sentencing Act into law, finally reducing the 100-to-1 ratio.  During those 15 years, more than 70,000 men and women were sentenced for crack offenses under a very discredited law.  And incredibly, here we are today, in 2024, still struggling with this issue, with many, including the Justice Department, pushing for enactment of the EQUAL Act to finally eliminate the disparity, and with Department charging and sentencing policy in place as a temporary workaround.

Judge Conaboy, the Chair of the Commission in 1995, felt the Commission did the right thing in voting 4-3 to equalize the federal penalty structure for crack and powder cocaine.  He believed that Congress’ role was similar to that of an appellate court, and the Commission’s role to a district court; that the individual commissioners were right to vote based on their own principles, rather than on trying to reach a consensus.

I took away many lessons from that experience, including that policy craft matters; that the arc of the moral universe does indeed bend toward justice, but not in a simple or straightforward or continuous way; that at the Sentencing Commission at least, collaboration is better than division; and that while we may be in denial about it, we who work on federal sentencing policy are all playing the long game that will outstretch our time, no matter how stubborn or persistent we may be. 

I think Judge Conaboy was wrong.  The Commission is a political, policymaking institution, very different from a court.  And while reaching consensus on a court may be preferable at times too (see below), it is very often critical for the Commission to do so.

This year, the Sentencing Commission culminated another amendment year in April with some contentious issues.  In mid-2023, Judge Reeves, the Chair of the Commission, declared that the 2023-24 amendment year would be a “pause.”  It turned out not so much, and the amendment year included some fairly significant and divisive issues.  The three that initially divided the Commission most were amendments addressing youthful offenders, acquitted conduct, and simplification (what turned into a consideration to eliminate all departures from the guidelines).  Going into the April meeting, I was sure the Commission was heading for at least one 4-3 vote, on youthful offenders.  After all, the Commission was divided, 4-3, even on whether to publish the proposed amendment on the issue.  And I thought it likely that the Commission would also split on acquitted conduct and simplification.

But I was wrong.  The Commission’s votes on all the amendment proposals addressed at the April meeting were 7-0.  Why?  Candidly, I’m not sure.  But as reported, the day before the votes, Senator John Kennedy (R-LA), a member of the Senate Judiciary Committee, introduced the Consensus in Sentencing Act of 2024.  That bill would require the U.S. Sentencing Commission to achieve bipartisan agreement to make major policy changes.  It would require five votes to adopt a guideline amendment, rather than four.  And because no more than four commissioners can be of any one political party, it would require bipartisanship.

Senator Kennedy was quoted in a press release accompanying the introduction of the bill –

“The Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines.  In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.  My bill would help the Sentencing Commission revive its consensus-building culture,” said Kennedy. 

Ironically, the bill was cosponsored only by other Republicans.  What influence the bill – and the vote on the confirmation of two of the sitting commissioners in the Senate Judiciary Committee to new terms a day after the Commission vote – had on the April Commission votes will have to wait for the memoirs of the voting commissioners.

So, for the Sentencing Commission, does it matter if they are trying to – of if they successfully reach – compromise and consensus?  I think so.  Unlike 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.

Moreover, we ought not lose sight of the fact that the Commission’s sentencing guidelines are just advice to sentencing courts.  Since the Supreme Court decision in Booker v. United States, no judge is required to follow them.  If a sentencing court is aware that almost half the Commission thought the promulgated advice is bad, the likelihood of it following that advice, you would think, would drop significantly.  At the very least, the advice would be suspect.  Just as the Supreme Court’s 9-0 vote in Brown v. Board of Education had some persuasive force with some simply on account of its unanimity, so a 7-0 Commission vote carries extra persuasive force too.

Does this 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 because it will only act by consensus?  I don’t think so.  I just believe that those pushing those big things will have to work a lot harder – this is what I mean by “policy craft” – to convince some of their colleagues to join in.  It may take meeting more than a couple of days of month, as is the Commission practice now. It may take giving a speech or two to try to convince stakeholder/constituents of the wisdom of the change (that’s what policymaker/politicians do to build support for their ideas).  It may mean writing an op-ed or two or publishing an essay on a Substack. Yes, others will certainly have to listen in good faith.  But it can be done.  Change can happen. Good sentencing ideas can be sold. Just look to some of the state sentencing commissions, and even look at the history of federal sentencing reform.

Finally, does it matter if the commissioners are friends?  Does it matter if they get along?  If they go to ball games together?  I think it’s great – and beneficial – for commissioners to get along and be friends.  Not so much because I think it leads to better listening or open-mindedness.  Those are skills in and of themselves, as Judge Tatel writes.  Let’s be real; don’t we all have friends or lovers from whom we’ve heard their best arguments years ago and who we often tune out on conversations of policy?  But it’s just nice to have friends, to spend joyous time with one another, and to sing songs together, regardless of any practical utility.