Tag Archives: sentencing commission

A Sentencing Commission Phoenix? – Update for April 7, 2021

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

SENTENCING COMMISSION REVIVAL NEAR?

phoenix210408The seven-member United States Sentencing Commission, which hasn’t had a quorum since 2018 and is now down to one member, may be about to experience a rebirth.

Rollcall reported last week that the Biden administration has solicited lawmakers and criminal justice advocates for guidance on a slate of appointments, a move that could influence congressional efforts of criminal justice reform.

The commission must include three federal judges and no more than four members from any one political party. The Senate must approve the members. The last confirmation vote was four years ago, for Senior U.S. District Judge Charles Breyer (who is the only remaining USSC member).

Sen. Charles E. Grassley (R-Iowa), ranking Republican on the Judiciary Committee, said last week that the Biden administration is working to avoid Senate confirmation problems for its slate of USSC nominees “because both they – the White House – and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Breyer said he anticipates that the White House will put forward a slate of six nominees. Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said. “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.

The Commission’s last Guidelines amendments became effective in November 2018.

Rollcall: Help wanted – Revived commission could spark criminal justice changes (March 29, 2021)

Sentencing Law and Policy, Might we be getting closer to (needed) new nominees for the “frozen” US Sentencing Commission? (March 31, 2021)

– Thomas L. Root

Drug and 924(c) Sentence Reduction, Retroactivity Bills Introduced – Update for March 29, 2021

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

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TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE

The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.

smart210328Sens. Richard Durbin (D-Illinois), Mike Lee (R-Utah), and 11 cosponsors introduced S.1013, the Smarter Sentencing Act of 2021, seeking once again to reform some drug mandatory minimums. At the same time, Durbin and Sen. Charles Grassley (R-Iowa) introduced S.1014, the First Step Implementation Act of 2021.

The Smarter Sentencing Act, an updated version of the Smarter Sentencing Act of 2019 (which went nowhere), continues the mandatory minimum adjustments to 21 USC § 841(b), the sentencing section of the drug trafficking statute begun by the First Step Act. First Step adjusted mandatory life in § 841(b)(1)(A) to 25 years, and mandatory 20 years in the same subsection to 15 years. The Smarter Sentencing Act proposes similar adjustments:

(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.

(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.

Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).

Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.

mandatory170612Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Meanwhile, S.1014 – the First Step Implementation Act – is equally significant. It would extend retroactivity to anyone sentenced for drug or stacked § 924(c) offenses sentenced prior to the 2018 First Step Act and let judges waive criminal history limitations that keep defendants from getting the 18 USC § 3553 safety value.

Additionally, the bill corrects a weird anomaly in the First Step Act that redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.

The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.

usscmembers210328The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.

As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.

Committee on the Judiciary, Durbin, Lee Introduce Smarter Sentencing Act (March 26, 2021)

Congressional Record, Statements On Introduced Bills And Joint Resolutions (S.1013 and S.1014) (March 25, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “Smarter Sentencing Act” to reduce federal drug mandatory minimums (March 26, 2021)

– Thomas L. Root

Trump (Finally) Rolls Out Sentencing Commission Slate, Albeit Unbalanced One – Update for August 20, 2020

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

TRUMP FINALLY DECIDES TO NOMINATE NEW SENTENCING COMMISSION MEMBERS, AND FAMM SHOUTS “NOT SO FAST!”

The U.S. Sentencing Commission has lacked a full slate of commissioners for the entirety of Trump Administration, and has not even had a quorum since the First Step Act passed in December 2018. That is why no sentencing guideline has been amended since the November 2018 amendments went into force.

Last week, the White House announced nominees for the vacant Commissioner slots (which persons must be approved by the Senate). They include Judge K. Michael Moore of Florida, to be chairman; Judge Claria Horn Boom of Kentucky; Judge Henry E. Hudson of Virginia; John G. Malcolm, Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation; and Judge Luis Felipe Restrepo of Pennsylvania.

HudsonA170811The bad news is that four of the five nominees have been Assistant U.S. Attorneys, and that three of those four are sitting judges as well. The worse news is that Judge Henry Hudson, who has the well-deserved nickname of “Hang-‘em-High Henry,” is one of the nominees. A lonely piece of good news is that Judge Luis Restrepo comes from a public defender background.

How’s that for balance?

hudsonB170811“The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,”  Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights, told NPR. “It is critically important that the Sentencing Commission reflects the diversity of background, experience, and expertise that would make the work of the Commission most effective. It is also important to note that at least two of the candidates have records or expressed views on sentencing issues that raise serious concerns.”

FAMM (formerly Families Against Mandatory Minimums) wrote to Senate Judiciary Chairman Sen. Lindsey Graham (R-South Carolina), and ranking minority member Sen. Dianne Feinstein (D-California) last week to urge them to refrain from acting on the nominations until next year:

There are less than 20 legislative days before the election. That is not nearly enough time to give nominees to this important agency the thorough examination and consideration they deserve – and that the people who will be subject to the Commission’s decisions deserve.

FAMM noted specifically that one of the Sentencing Commission’s urgent priorities will be to “address a federal prison system that has been overwhelmed by the spread of COVID-19. The deaths to date of 112 federal prisoners and at least one staff member compel serious reflection about various aspects of the federal prison system, including sentence lengths and early release mechanisms, over which the commission has some authority.”

privateprison200820(Note: The BOP hit 120 dead inmates a couple of days ago, being 114 in BOP custody and another six federal prisoners in private prisons. But no one seems want to count the people who are guests of the for-profits. That is perhaps a topic to cover for another day.)

Of course, what FAMM is really saying is that if the Senate waits until January, there may be a new President and a much different slate of commissioner nominees to consider.

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2020)

FAMM, Letter to Sens. Lindsey Graham and Dianne Feinstein (August 14, 2020)

NPR, Concern Mounts Over Possible Trump Picks For Influential Crime Panel (August 19, 2020)

– Thomas L. Root

Sentencing Commission Redux – Update for June 25, 2020

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

TRUMP MAY BE MOVING TO REPOPULATE SENTENCING COMMISSION

USSC170511The U.S. Sentencing Commission, a judicial-branch agency established by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 235(b)(3), 98 Stat. 2032 (1984), is responsible for promulgating and amending the Sentencing Guidelines that have profoundly influenced virtually every federal criminal sentence for the past 30 years (and in fact were mandatory from inception until 2005).

But the Commission – which customarily amends the Guidelines annually – has been unable to issue new or amended Guidelines since the end of 2018, because the terms of three of the five USSG members expired at the end of that year. Since then, the President has made one attempt to nominate replacements to the Commission without success. He may be about to try again.

NPR reported last week that the White House has been consulting Capitol Hill and the criminal justice community about four Republican candidates for two of the slots on the Commission, three of them federal judges and the other from the conservative think tank Heritage Foundation.

HudsonA170811Republican candidates include Senior US District Judge Henry Hudson (Eastern District Virginia), a former director of the US Marshals Service known as “Hang ‘Em High Henry” for his work as a local prosecutor. Hudson has a reputation for handing out long sentences. Another is Chief Judge K. Michael Moore (Southern District Florida), also a former director of the Marshals. Eastern District of Kentucky Judge Claria Horn Boom, a favorite of Senate Majority Leader Mitch hudsonB170811McConnell (R-Kentucky), is in the running, as is John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies and a former AUSA. Malcolm helped then-candidate Trump put together a list of candidates in the event a Supreme Court vacancy opened up. Malcolm has reached out to allies across the political aisle to try to overhaul mandatory minimums.

One of the Commission slots is reserved for a Democrat. The President is proposing 3rd Circuit Appeals Judge L. Felipe Restrepo, a former public defender appointed to the judgeship by President Barack Obama.

NPR, Concerns Mount Over Possible Trump Picks For Influential Crime Panel (June 19)

– Thomas L. Root

Does the Fox Guarding the Henhouse Know Anything About Chickens? – Update for May 22, 2020

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

6TH CIRCUIT ISSUES REMARKABLE CRACK SENTENCE REDUCTION RULING

hammer160509Everyone knows that a fox should not be delegated to guard the henhouse. But that’s because a fox knows what a chicken is (not to mention all of the delicious ways one may be prepared for dinner). But is it better when the fox, with all of a fox’s carnivorous ways, doesn’t have the first idea about the chickens he has been tasked to guard?

Back in 2006, Marty Smith pled guilty to a crack conspiracy involving more than 50 grams. Because Marty had a prior state drug conviction, he received a 240-month (that’s 20 years) mandatory minimum sentence, even though his Guidelines sentencing range would otherwise have been a still-substantial 168-210 months.

After the First Step Act passed, Marty applied for retroactive application of Congress’s 2010 Fair Sentencing Act, which punished crack cocaine offenses much more closely to powder cocaine offenses.  Marty’s sentencing court, the U.S. District Court for the Eastern District of Kentucky, agreed that Marty was eligible for a reduction, and that under the FSA, his sentencing range was 77-96 months (and the statutory mandatory minimum fell to 120 months). But the sentencing judge hardly cared: he held that Marty’s original 20-year sentence “remained appropriate.”

“Appropriate” to whom? Certainly not to the 6th Circuit, which last week reversed Marty’s sentence. Noting that the sentence that the district court reimposed is now twice Marty’s maximum Guideline range and 250% the bottom of his range (excluding the statutory minimum), the Circuit held that that “the district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.”

The district court did little more than recall it had examined the 18 USC § 3553(a)(2) sentencing factors back in 2007, the Circuit said, and found Marty had a high risk for recidivism based on his significant criminal history. The 6th held that “these considerations are accounted for within-the-guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress… This is especially true when the district court previously found the at-guideline range sentence to be appropriate.”

It is true that Congress changed the Guidelines through the Fair Sentencing Act, the 6th said, but “the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline.”

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Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the U.S. Sentencing Commission. There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which ‘considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress’.”

hammering200522The Sentencing Commission has been without a quorum since December 2018. Judge Reeves’ term expires on October 1, 2021. despite the fact that the Guidelines badly need revision (see the Commission’s obsolete policy on compassionate release, if you want an excellent example), perhaps there are worse things in the world than handing Judge Reeves a hammer for him to take to sentencing policy he may not completely understand.

United States v. Smith, Case No. 19-5281, 2020 U.S. App. LEXIS 15613 (6th Cir. May 15, 2020)

Sentencing Law and Policy, Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions (May 16)

– Thomas L. Root

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

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DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Nothin’ Happenin’ Here – Update for September 6, 2019

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NO FAIR CHANCE FOR FAIR CHANCE ACT


nothinghere190906Those of us who have recently had the Grim Reaper knock on the door – or at least, received notice of our mortality in the form of a Medicare card arriving in the mail – remember Buffalo Springfield, a drug-addled band named for an obscure brand of steamroller. The band’s only real chart-topper was a 1967 protest song, “For What It’s Worth.” As I recall it (to the extent I recall anything at all from the ’60s), the song began, “Somethin’s happening’ here…”

Inmate readers ask regularly me what legislation or Sentencing Guidelines changes are in the Washington, D.C., pipeline to benefit people with gun cases or career offenders or white-collar defendants or people with sex cases… You name the offense, and you can be sure there are some hopefuls out there in the Bureau of Prisons population.

My answer to them is short and painful: Nothin’s happening’ here. Or there. Or anywhere. No Guidelines amendments on November 1st this year, no legislation with a ghost of a chance of passage in this two-year session of Congress. Nothin’.

The Democrats don’t want to pass anything the Republicans want, the Republicans don’t want to pass anything the Dems want. With the 2020 election only 14 months away, nothing is going to get done.

nothing190906

And as far as the Guidelines go, nothing will come out of the Sentencing Commission until the President decides to use his marker pen to write down the names of appointees instead of phantom hurricane paths. The Sentencing Commission has needed at least two more members, enough to make a quorum, since last December. Without the quorum, the USSC has been unable to vote on anything for the past nine months, including amendments to the Guidelines.

And there are no nominations on the horizon.

fairchancebanbox190906The only legislation even getting media interest is the Fair Chance Act, which curiously enough was introduced by Rep. Elijah Cummings (D-Maryland) but has broad conservative support (including that of the President, who recently has engaged in a Twitter war with Cummings). Fair Chance would prevent the federal government and federal contractors from conducting a criminal background check or otherwise inquiring about an applicant’s criminal record until such time as a conditional job offer is extended. Once an offer is made, the employer can then conduct the criminal background check as needed.

No question the legislation is needed. A 2009 study by Princeton and Harvard researchers indicated that those who indicate they have a criminal record are 50% less likely to receive a callback than those who do not check the box.

But needed or not, Fair Chance – like any other criminal justice reform legislation – has no fair chance until 2021.

The Daily Signal, A Bill to Give Former Inmates a Second Chance (Aug. 26)

– Thomas L. Root

Keep on Gunnin’ – Update for July 11, 2019

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

GUN AND RE-GUN

gunknot181009The Sentencing Commission does not have enough members for a quorum, so it cannot adopt any Guidelines changes. It still has a busy staff, however, and keeps grinding out studies.

At the end of June, the Commission issued a study of about 3,500 federal firearms offenders, reporting that

•   Gun offenders commit new crimes at a higher rate than non-gun offenders, with 68% being arrested for a new crime during the eight years following release, compared to 46% of non-gun offenders, with higher percentages in every age and criminal history group;

• Gun defendants re-offend more quickly than non-gun defendants. The median time from release to the first new crime was 17 months, compared to 22 months for non-gun people; and

•   More gun offenders were rearrested for serious crimes than non-gun offenders, with assault was the most serious new charge for 29%, followed by drug trafficking (14%) and public order crimes (12%). Of the non-gun offenders, assault was the most common new charge for 22%, followed by 19% for public order crimes and 11% for drug trafficking;

United States Sentencing Commission, Recidivism Among Federal Firearms Offenders (June 27, 2019)

– Thomas L. Root

Keeping Count – Update for May 15, 2019

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

SENTENCING BY THE NUMBERS

The Sentencing Commission Fiscal Year 2018 Annual Report and Sourcebook came out last week. Besides the obvious (which the Annual Report sort of soft-pedaled, that the Commission lacks a quorum, and thus cannot perform its primary duties), the release contains some interesting numbers taken from 2018’s 69,400 district court sentencings. (All years are fiscal years, running from Oct. 1 to Sept. 30):

• The Feds are busier this year than last. The sentencing caseload increased by 3.7% from 2017, the first increase in caseload since 2011.

numbers180327• It’s not what you did, it’s where you’re from, that matters. Immigration crimes replaced drug offenses as the largest single group of offenses. Immigration cases increased from 30.5% in 2017 to 34.4% in 2018, while drug and firearms prosecutions fell.

• Meth is the drug of choice. Methamphetamine offenses, the most common drug type in the federal system, continued to rise (from 30.8% of all drug offenses in 2016 and 34.6% in 2017 to 39.8% in 2018).

• The Guidelines still rule. 75% of federal offenders were sentenced under the Guidelines Manual in 2018. Of those, 51.0% were sentenced within the defendants’ Guidelines sentencing range, an increase of 1.9 points from 2017. The number of defendants getting downward departures for helping the government remained at 10.1%, the same level as 2017.

U.S. Sentencing Commission, FY 2018 Sourcebook (May 8, 2019)

– Thomas L. Root

The Year of No Guidelines – Update for May 7, 2019

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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?

Guidelines red text and magnify glassThe 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.

emptyroom190507For 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