We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WHITHER GUIDELINES?
The first of May was both International Workers Day (for you Marxists) and Law Day (if you’re a lawyer). For the past 31 years, it has also customarily brought a package of Sentencing Guidelines amendments, each of which is to become effective on the following November 1st (six months hence) unless Congress objects, pursuant to 28 USC 994(p).
Not this year. For the fourth time in 31 years, the Commission will adopt no Guideline amendments to send to Congress. This has only happened before in 1996 and 1999, and more recently in 2017.
The problem is one of politics. The Sentencing Commission was established by Congress in the Sentencing Reform Act of 1984 as a permanent, independent agency within the judicial branch. The seven Commission members are appointed by the President and confirmed by the Senate for six-year terms. Commission members may be reappointed to one additional term, also with the advice and consent of the Senate. Three of the members must be federal judges, and no more than four may belong to the same political party. The Attorney General or his designee and the chair of the United States Parole Commission sit as non-voting members of the Commission.
No matter how important the Commission may be to federal inmates, Washington sees it as a political backwater. Already operating with only five members in 2017, the Commission’s voting membership fell further last year to four. Then, at the end of 2018, the terms of Judge William Pryor of the 11th Circuit and New York University law professor Rachel Barkow expired.
For the past five months, the Commission has had only two voting members. Two more must be appointed and approved by the Senate just to have the minimum number needed for a meeting. Former Sentencing Commission chairwoman Patti Saris, who is Chief Judge of the U.S. District Court for the District of Massachusetts, complained in a Law360.com article last week, “Today, the United States Sentencing Commission sits without a confirmed chair, or even a quorum of members. This severely impairs the commission’s ability to study further reforms. For example, with only two current commissioners, the commission is unable to pass amendments to make the sentencing guidelines consistent with the statutory provision expanding the “safety valve.” While the research and training activities of the commission continue, the commission needs a quorum.”
Meanwhile, the amendment cycle for 2018 has come and gone without action for the second time in three years. Thank heaven that the Guidelines, after 30 years of development, are perfect in every regard (said no one ever).
Law360.com, The First Step Act Is A Major Step For Sentencing Reform (Apr. 28)
– Thomas L. Root