Vacancies in US Sentencing Commission Offer Pathway to Reform

With six of the seven seats in the U.S. Sentencing Commission open, President Biden has been given the opportunity to remake the panel in a way could take help review decades-old sentencing guidelines to reflect a modern understanding of those issues, reports Bloomberg News. By statute, the commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party. While guidance is advisory, it creates a framework for federal judges when deciding how to sentence. As the acting chair of the Sentencing Commission, Senior U.S. District Judge Charles Breyer is effectively powerless since the commission needs at least four voting members for a quorum. While Trump nominated people to the commission, the Senate didn’t take them up.

The loss of a quorum came shortly after Congress passed the First Step Act in December 2018. Before the passage of the law, compassionate release requests made it into court only after the Bureau of Prisons (BOP) agreed they should be granted. But the new law created a route for those requests to get to court if the BOP denies them or doesn’t respond in 30 days. The commission’s inability to update guidance has left courts to interpret the new law on their own amid an influx of requests for compassionate releases during the pandemic. A new commission could take a look at sentencing guidelines more broadly and base them on updates in science behind the issues.