Sentencing Commissioners Approved by Senate
Seven sentencing commissioners but forth by President Biden have been approved. These positions on the United States Sentencing Commission end the inability to amend the guidelines.
What is the United States Sentencing Commission?
We have covered the United States Sentencing Commission at great length over the past few years. You can go here to learn more about the commission and what they do.
The Problem: Not Enough Commissioners
Commissioners serve limited terms that cannot be renewed. Once a commissioner’s term is over they “rotate off” the commission. Sentencing commission members must be nominated by the President and approved by congress. No nominees have been submitted by Presidents in recent years. This has caused all but one voting member to have “rotated off” the commission. This also means that no substantive changes to the guidelines have happened.
As we have previously indicated, in 2018 the FIRST STEP Act was signed into law, causing changes to the compassionate release statute, specifically regarding compassionate release because of “extraordinary and compelling circumstances.” However, the guidelines and commentary were not adjusted to define what “extraordinary and compelling circumstances” meant. This created waves of litigation as inmates filed motions for compassionate release to be released from prison during the COVID-19 pandemic. It also has created circuit splits regarding what was an extraordinary and compelling circumstance. See United States v. Bryant, No. 19-14267 (11th Cir. 2021), United States vs. McKinnie, 24 F.4th 583 (2022).
The situation is now so dire that the last remaining member of the commission, Senior United States District Judge Charles Breyer publicly asked Biden to appoint new commissioners.
Biden Selects Nominees
“The White House is nominating seven lawyers for posts on the U.S. Sentencing Commission, a bipartisan panel that helps set policies for punishing people convicted of federal crimes.
The panel has lacked enough members to do important work since 2019, and criminal justice advocates had pushed the Biden administration to act for more than a year.”
Judge Carlton W. Reeves (S.D. Miss)
Laura Mate (Former Public Defender and Director of Sentencing Resource Counsel, a Public Defender Project)
Claire McCusker Murray (Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021)
Judge Luis Felipe Restrepo (3rd Circuit)
Judge Claria Horn Boom (ED KY and WD KY)
Judge John Gleeson (E.D. NY, Retired)
Candice C. Wong (previous ex-officio member of the commission)
On August 5, 2022, the Sentencing Commission issued a press release indicating that the prospective commissioners were approved by the Senate:
WASHINGTON, D.C.―The US Senate has confirmed a group of seven bipartisan members to serve on the US Sentencing Commission, providing the independent judicial branch agency with a voting quorum for the first time in more than three years. The Commission is charged with promoting transparency and proportionality in federal sentencing and reducing sentencing disparities.
The newly confirmed members of the Commission are District Judge Carlton W. Reeves, who will serve as Chair of the Commission; Circuit Judge Luis Felipe Restrepo, Laura Mate and Claire McCusker Murray, who are expected to be designated as Vice Chairs; District Judge Claria Horn Boom; former District Judge John Gleeson; and Candice Wong.
Upon appointment of the new Commissioners, current Acting Chair Senior District Judge Charles Breyer will step down from his position at the agency.
Judge Breyer said of the new Commissioners, “It is great news that the Senate has confirmed a full slate of seven bipartisan Commissioners. The lack of a quorum at the Sentencing Commission has created a void in the criminal justice system. As Senior US District Judge for the Northern District of California and Acting Chair of the Sentencing Commission, I know all too well the difficulty judges have faced in implementing the criminal justice reforms enacted by the First Step Act in 2018.”
“In addition, the Commission has been unable to provide guidance on a number of recent sentencing policy challenges, leaving the courts without uniform sentencing standards. The Sentencing Commission is vital to ensuring fairness and effectiveness of federal sentencing guidelines and policy.”
“These new Commissioners have an important task ahead of them. I am grateful to all of them for their willingness to serve in this important capacity, and I am honored and look forward to working with them.”
Incoming Chair Carlton W. Reeves, US District Judge for the Southern District of Mississippi said, “The criminal justice system has some troubling divisions that have emerged among courts on sentencing issues during the years the Commission lacked a quorum.”
“My new Commission colleagues are all highly experienced professionals with vast knowledge of and broad expertise in the criminal justice system.”
“Our diverse backgrounds and expertise will bode well as the Commission works to address these complex issues in a bipartisan matter.”
“I am honored to have been nominated to this position by the President and to have been confirmed by the Senate.”
“I also am grateful for the many years that Judge Charles Breyer served on the Commission. Under his leadership, the Commission completed some important reports on recidivism, fentanyl, firearms offenses and compassionate release, to name just a few. His efforts to promote transparency and national uniformity in sentencing are to be commended.”
“We look forward to building upon all the great work that Judge Breyer and past Commissioners have done.”