We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

JUDGE BREYER TELLS BIDEN HE’S LONELY ON THE SENTENCING COMMISSION

Senior District Judge Charles Breyer, who sits on the U.S. District Court for the Northern District of California, is the last man standing.

The U.S. Sentencing Commission’s lone remaining member last Thursday called upon President Biden to act now to nominate enough new commissioners to put the Commission back in business so it can help implement the 2018 First Step Act.

“I would be surprised and dismayed if nominees are not sent to the Senate by the early part of next year,” Judge Breyer said in an interview with Reuters.

The U.S.S.C. lost its quorum after the December 2018 meeting, which ironically enough occurred just about a week before First Step was signed into law. Judge Breyer said the lack of quorum meant the Commission could not provide guidance on how to implement the law, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure compassionate release amid the COVID-19 pandemic.

“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the U.S.S.C. was powerless to fix things.

Judge Breyer said that was aware that nominees are currently being vetted. The White House had no immediate comment.

Ohio State University law professor Doug Berman has been beating the drums in his Sentencing Law and Policy blog to revitalize the USSC for several years. So far, no one – including the “criminal justice reform” President Biden – has listened.

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Should I give up hoping Prez Biden will soon make long-needed nominations to US Sentencing Commission? (October 24, 2021)

– Thomas L. Root