In this post earlier this month, I wondered aloud about when we might reasonably expect Prez Biden to make needed appointments to the US Sentencing Commission. This issue remained on my mind when I was recently asked to write a commentary for ASU’s new Crime and Justice News site. Specifically, I decided to write on “Reviving the U.S. Sentencing Commission,” and here is an excerpt from this commentary (links from original):
[F]ederal sentencing politics and policy development have transformed dramatically in recent years. Presidents Obama and Trump did not agree on much, but they both supported and signed major federal sentencing reform legislation designed to reduce punishment levels. Huge majorities in Congress passed the Fair Sentencing Act in 2010 and the FIRST STEP Act in 2018, demonstrating strong bipartisan support for impactful changes to federal sentencing laws and practices. Congress even titled its 2018 legislation to signal the law was to be just the first in a series of reform steps for the federal justice system. Meanwhile, a global pandemic and heightened concern about racial injustices in 2020 have only increased calls for change and further heightened the moral and practical imperatives for the U.S. Sentencing Commission to pursue big and bold sentencing reforms.
But, problematically, the U.S. Sentencing Commission presently cannot advance any reforms because persistent vacancies have crippled its ability to function. Open commissioner slots were left unfilled in the final years of the Obama Administration, and new nominees advanced by President Trump in March 2018 were controversial and got a cold shoulder from the Senate. Remarkably, the agency Congress created to advance sound “sentencing policies and practices” lacked a quorum for much of the Trump Administration as Congress debated, enacted and oversaw the initial implementation of the landmark FIRST STEP Act. As of this writing, the Commission currently has only a single Commissioner; the agency now needs six new confirmed members to get back to full strength and at least three new commissioners to be somewhat functional.
The current vacancies not only create a critical need for President Biden to revive the U.S. Sentencing Commission, but also provide a critical opportunity to reimagine who serves on this Commission and how it approaches its work. Circa 2021, we have not just bipartisan political support for meaningful criminal justice reforms at local, state and federal levels, but also a wide and diverse array of individuals with a deep reserve of sentencing expertise and experiences. President Biden must make it a priority to nominate a full slate of new commissioners with diverse backgrounds and experiences who will advance an ambitious, grand view of how the Commission can and should seek to meet our current criminal justice moment.
In a letter to Democratic Senators following his election, President Biden signaled an interest in nominating for judgeships “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.” This sentiment can and must carry over to nominations to the U.S. Sentencing Commission, which has historically been dominated by persons with prosecutorial backgrounds. With millions of persons federally prosecuted in recent decades and with a third of all U.S. adults burdened with some kind of criminal record, representing “Americans in every walk of life” in this context must include individuals involved in the justice system.
In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.” As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.” Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system. President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.