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RECOMMENDATION 1

Reinvigorate the U.S. Sentencing Commission

Created by the Sentencing Reform Act of 1984 (SRA), the U.S. Sentencing Commission (USSC or Commission) was intended to promote proportionality and transparency and to alleviate sentencing disparities in federal criminal cases. The Commission was designed as a bipartisan, independent agency housed in the judicial branch, and it introduced sentencing guidelines for the federal justice system in 1987. Through guidelines modifications and critical research, the USSC has played a central role in advancing the multiple goals of sentencing over the past three decades. The SRA mandated that federal judges impose sentences within the USSC’s guidelines. That changed in 2005 with the U.S. Supreme Court’s landmark ruling in United States v. Booker. This decision gave judges greater discretion to fashion sentences outside the guideline boundaries—and they have used it. A Commission analysis of more than 140,000 federal cases from 2005 to 2017 and across 30 cities found that, within the same city, the length of a sentence might differ by as much as 63% depending on the judge. While the Booker decision altered the primacy of the USSC’s guidelines, the SRA’s intent to promote consistent, proportionate, and fair sentencing remains in force. It is clear, however, that the Commission is not currently equipped to promote those goals. The Commission requires a quorum of four voting members to act, but persistent vacancies have kept it from meeting this threshold over the past several years. As a result, the Commission has been unable to modify sentencing guidelines to reflect current law, including the bipartisan reforms of the FIRST STEP Act of 2018. The Commission’s inability to act also means the guidelines fail to reflect current research on sentencing alternatives, recidivism, collateral consequences, and public safety outcomes. The Task Force believes the President and Senate should reinvigorate and refocus the USSC so it can guide the federal judiciary toward fair, consistent, and effective sentencing. Not every change to federal sentencing policy should require an act of Congress. The Commission was established to ensure that sentences handed down in federal courts reflect current law and state-of-the-art knowledge. It must be allowed to do its job.

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Recommendation

The President and the Senate should fully reconstitute the U.S. Sentencing Commission so it can fulfill its statutory duties to make necessary and timely adjustments to the sentencing guidelines, make recommendations to Congress for needed changes to federal criminal and sentencing statutes, and conduct research on the policies and operation of the federal sentencing and corrections systems.

Implementation Steps

  1. The President and the Senate should work together to ensure that the Commission maintains a full complement of confirmed members.
  2. Congress should amend the Sentencing Reform Act to include on the Commission a representative of the defense bar as a non-voting, ex-officio member, similar to the status of the representative of the Attorney General.
  3. Congress should revisit the size and composition of the Commission to ensure that its membership reflects the broader community impacted by the criminal justice system, but should not reduce the number of judges on the Commission.
  4. The Commission, when reconstituted, should build upon its tradition of: a. ensuring amendments to the sentencing guidelines are proposed in a timely manner and are acted upon within a reasonable period after public notice and comment; b. developing an annual research agenda that focuses on outcomes of existing policies and alternative policies, as well as promising practices designed to promote public safety, reduce recidivism, increase trust and confidence in the federal criminal justice system, and eliminate the unnecessary use of incarceration at the federal level.
  5. The Commission should further evaluate, develop, and promote alternatives to incarceration as a strategy to divert appropriate convicted individuals from prison, and should promote the availability of evidence-based sentencing alternatives across the system as appropriate.
  6. Consistent with the recommendation of the American Law Institute, the Commission should immediately begin a comprehensive review of the federal criminal sentencing system that culminates in a report to Congress and the public on the effectiveness of the current system and includes recommendations for appropriate reforms. This type of review should be conducted at least every 10 years.

Annotated Citations

The United States Sentencing Commission - About. The United States Sentencing Commission, https://www.ussc.gov/about-page. Accessed 10 March 2020. The United States Sentencing Commission (Commission) is an independent agency in the judicial branch of government created by the Sentencing Reform Act of 1984 (SRA). Congress enacted the SRA in response to widespread disparity in federal sentencing, ushering in a new era of federal sentencing through the creation of the Commission and the promulgation of federal sentencing guidelines. The Commission's principal purposes are:

  1. to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes;
  2. to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and
  3. to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public.

The federal sentencing guidelines are used across the country in every one of the 94 judicial districts and 12 circuit courts. Federal judges are required to review and calculate the guidelines as they contemplate and impose an equitable sentence.

United States v. Maumau, Case No. 2:08-cr-00758-TC-11 (D. Utah Feb. 18, 2020). U.S. v. Maumau provides an example of the courts’ need for updated guidance from the Commission and the ramifications of its lack of a quorum. In this case, the defendant, Kepa Maumau, filed a motion to reduce his 55-year sentence under 18 U.S.C. § 3582(c)(1)(A). Under current Commission guidelines, Maumau was not eligible for compassionate release. But these guidelines have not been updated to incorporate FIRST Step Act provisions expanding eligibility for compassionate release. As U.S. District Court Judge Tena Campbell wrote in her opinion, “The Sentencing Commission’s policies are unlikely to be updated any time soon because there are currently an insufficient number of appointed commissioners. See United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 at *2 n.1 (S.D. Iowa Oct. 8, 2019) (“As district courts have noted often this year, the Sentencing Commission has not amended the Guidelines following the First Step Act and cannot do so until it again has four voting commissioners.”); see also About the Commissioners, U.S. SENTENCING COMM’N, https://www.ussc.gov/commissioners (last visited Feb. 12, 2020) (stating that only two commissioners are presently in place).” As of this writing, the court has found that it has the authority to resentence Maumau and his case is eligible for resentencing. The case was scheduled to be resentenced on April 7, 2020.

Reitz, Kevin R., and Cecelia M. Klingele. “Model Penal Code: Sentencing, Proposed Final Draft.” American Law Institute, 10 April 2017.

https://robinainstitute.umn.edu/sites/robinainstitute.umn.edu/files/mpcs_proposed_final_draft.pdf This 2017 work updates and modernizes the seminal 1962 Model Penal Code approved and published by the American Law Institute. As described by its authors, “This work addresses the many changes in sentencing philosophy and practice that have taken place in the more than 40 years since these matters were first addressed in the Model Code. The project considers the contemporary controversy about the appropriate length of American criminal sentences and the present widespread dissatisfaction with the rules and procedures used to determine them.”

Saris, U.S. District Judge Patti. “The First Step Act is a Major Step for Sentencing Reform.” Law 360, 28 April 2019, https://www.law360.com/articles/1153056/the-first-step-act-is-a-major-step-for-sentencing-reform “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. “Given the important role the commission has played in influencing the reforms found in the First Step Act, collaborative commissioners from both parties should be nominated and confirmed to continue to evaluate and advocate — in a bipartisan way — for effective sentencing policy.”