Commentary: Reviving the U.S. Sentencing Commission

Wednesday, February 24, 2021 - 8:00am

By Douglas A. Berman

In 1984, Congress created the U.S. Sentencing Commission as a judicial branch agency tasked with establishing “sentencing policies and practices for the Federal criminal justice system.” The original Commission developed comprehensive (and complicated) sentencing guidelines which federal judges were mandated to follow. The U.S. Supreme Court’s landmark 2005 ruling in United States v. Booker made these guidelines “effectively advisory,” but the intricate structures and substantive particulars of the guidelines still define and dominate how all federal actors approach every sentencing.

Congress anticipated the guideline system would evolve and called for the Commission’s work to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.” But while political and social views on crime and punishment have changed dramatically in recent times—especially with advancing knowledge about the impacts of mass incarceration, the drug war, collateral consequences, and systemic inequalities—the federal sentencing guidelines have been stuck in jurisprudential amber. Guideline amendments have only tweaked particular provisions (and almost always to increase their severity), and the Commission has never even seriously attempted to reexamine or rethink fundamental features of the guideline sentencing system.

This guideline inertia might be understandable if federal sentencing laws had remained stable and if federal sentencing actors considered the original guidelines successful in practice. But the exact opposite is true: Supreme Court rulings and new statutes have dramatically altered the federal sentencing landscape, and nearly all aspects of the guidelines—particularly their severity and complexity—have been strenuously criticized by so many federal judges, practitioners, and scholars. Moreover, new crime trends, new technologies, increased research and experiences about best sentencing practices all provide powerful reasons for the U.S. Sentencing Commission to review comprehensively and critically whether the federal sentencing structures created in the 1980s do more harm than good in the 2020s.

Early congressional interference with the Commission’s work might perhaps account for its long history of limited reform ambitions. In 1995, Congress rebuffed the Commission’s effort to equalize crack and powder cocaine sentences, and the 2003 PROTECT Act directly amended certain guidelines and reinforced lawmakers’ apparent affinity for the complex structures and harsh penalties of the guidelines. These congressional actions certainly undermined the Commission’s institutional independence and surely diminished its vision of the kinds of reform it could and should pursue.

But federal sentencing politics and policy development have transformed dramatically in recent years. Presidents Obama and Trump did not agree on much, but they both supported and signed major federal sentencing reform legislation designed to reduce punishment levels. Huge majorities in Congress passed the Fair Sentencing Act in 2010 and the FIRST STEP Act in 2018, demonstrating strong bipartisan support for impactful changes to federal sentencing laws and practices. Congress even titled its 2018 legislation to signal the law was to be just the first in a series of reform steps for the federal justice system. Meanwhile, a global pandemic and heightened concern about racial injustices in 2020 have only increased calls for change and further heightened the moral and practical imperatives for the U.S. Sentencing Commission to pursue big and bold sentencing reforms.

But, problematically, the U.S. Sentencing Commission presently cannot advance any reforms because persistent vacancies have crippled its ability to function. Open commissioner slots were left unfilled in the final years of the Obama Administration, and new nominees advanced by President Trump in March 2018 were controversial and got a cold shoulder from the Senate. Remarkably, the agency Congress created to advance sound “sentencing policies and practices” lacked a quorum for much of the Trump Administration as Congress debated, enacted and oversaw the initial implementation of the landmark FIRST STEP Act. As of this writing, the Commission currently has only a single Commissioner; the agency now needs six new confirmed members to get back to full strength and at least three new commissioners to be somewhat functional.

The current vacancies not only create a critical need for President Biden to revive the U.S. Sentencing Commission, but also provide a critical opportunity to reimagine who serves on this Commission and how it approaches its work. Circa 2021, we have not just bipartisan political support for meaningful criminal justice reforms at local, state and federal levels, but also a wide and diverse array of individuals with a deep reserve of sentencing expertise and experiences. President Biden must make it a priority to nominate a full slate of new commissioners with diverse backgrounds and experiences who will advance an ambitious, grand view of how the Commission can and should seek to meet our current criminal justice moment.

In a letter to Democratic Senators following his election, President Biden signaled an interest in nominating for judgeships “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.” This sentiment can and must carry over to nominations to the U.S. Sentencing Commission, which has historically been dominated by persons with prosecutorial backgrounds. With millions of persons federally prosecuted in recent decades and with a third of all U.S. adults burdened with some kind of criminal record, representing “Americans in every walk of life” in this context must include individuals involved in the justice system.

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.” As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.” Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system. President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

Professor Douglas A. Berman is the Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University’s Moritz College of Law.

News tags:

Any opinions expressed or positions taken here on Crime and Justice News are those of their respective
authors and should not be construed to be the opinions of ASU or any of its sub-units or programs.