April 17, 2013
If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
As reported in this post yesterday, President Obama officially nominated three new persons to serve on the US Sentencing Commission:
- an east-coast academic (NYU Professor Rachel Barkow)
- a west-coast district judge (ND Cal Judge Charles Breyer), and
- a southern appeals judge (Eleventh Circuit Judge William Pryor)
Notably, the comments to my prior post already include a variety of (not-always-informed) perspectives on these nominations. As I suggested in my prior post, I am a big fan of these nominees, in part because of their diverse backgrounds and professional history and in part because I have interacted with them all personally and been consistently impressed by their insights.
Some comments to the prior post direct particular criticism directed toward Judge Pryor, perhaps because he was a controversial figure when appointed to the bench by President Bush. I submit that, in this context, any assessment of Judge Pryor would be premature unless and until one has read Judge Pryor's own recent account of his history with sentencing and his perspective on the federal sentencing system. That account appeared in the Spring 2011 issue of my own Ohio State Journal of Criminal Law as William H. Pryor Jr., Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).
I recommend that all sentencing fans read the entire OSJCL article by Judge Pryor. These passages from the article's introduction should help explain the question in the title of this post (and perhaps also help account for why I hope all new nominees to the USSC get confirmed and get started ASAP):
During my tenure as a state attorney general from 1997 to 2004, I considered myself a sentencing reformer. My office drafted and successfully lobbied for the legislation that created the Alabama Sentencing Commission. Before my term as attorney general ended, the Commission began its long-term campaign to dismantle a regime of explosive growth in the prison population, disparities and dishonesty produced by indeterminate sentencing, and a system of corrections that offered few alternatives to incarceration as a form of punishment. Our hope was to create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.
My contributions to sentencing reform in Alabama ended in February 2004, when President George W. Bush appointed me first to serve temporarily as a circuit judge on the United States Court of Appeals for the Eleventh Circuit and later to a term of good behavior, which was confirmed by the Senate in 2005. In the meantime, the theater of sentencing changed dramatically — both for the states and the federal government — when the Supreme Court decided Blakely v. Washington in 2004 and United States v. Booker in 2005. I have had a front row seat as this play unfolded.
Although I consider myself a generalist in the performance of my public service, my experiences over the last dozen years have given me a comparative perspective of sentencing guidelines and scholarship. Over the last several years, I have participated in the adjudication of hundreds of federal appeals of criminal convictions and sentences and the collateral review of hundreds of state convictions and sentences. I have followed the successful, but often ignored, efforts of state sentencing commissions and reform movements and served as part of the members' consultative group of the revision of the sentencing provisions of the Model Penal Code. I also have read scholarship about and discussed with colleagues the widespread dissatisfaction with the federal sentencing guidelines....
I also have a perspective of federalism, shaped by my experience as a state attorney general, federal judicial servant, and teacher of federal jurisdiction, that a structural problem underlies the current challenges to federal and state sentencing reform. This structural problem involves the federalization of crime. In the spirit of making a modest contribution to the vision of the great reformer, Judge Frankel, I submit that sentencing commissions and lawmakers should consider this structural problem and together find creative solutions to the current challenges for sentencing reform.
My hope for sentencing reform is rooted in a respect for federalism, a venerable feature of the American constitutional order. Restoring some respect for federalism in criminal law might help bridge the political divide between the left and the right, the judicial divide between formalists and pragmatists, and the sentencing divide between individual sentencing and consistency in sentencing. To restore respect for federalism, we must reverse the federalization of crime.
April 17, 2013 at 07:32 PM | Permalink
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What a concise, incredible viewpoint.
Posted by: Liberty1st | Apr 17, 2013 10:02:21 PM
No mention of the scientific aspects of punishment. No mention of public safety and the utter failure of the criminal law to control 22 million FBI Index felonies each year. No mention of returning some value for the high tax tolls for the V word. No mention of the overdue necessity to open this system in utter failure to full tort liability to falsely imprisoned innocent people and to foreseeable future victims.
Just more procedure to generate worthless government make work jobs for lawyers. Why can't this Commission admit a regular person instead of these lawyers? Why must sentencing policy be so tightly protected from anyone resembling a real person? How about inviting a criminal to join the Commission to bring a small amount of insider information of "what will work to stop crime"?
Of course, the word, federalism, means states' rights, giving more power to the states, in accordance with the Tenth Amendment, a funny upside down meaning. When has that ever happened, even during conservative administrations?
Posted by: Supremacy Claus | Apr 18, 2013 12:42:28 AM
I know how a federal lawmaker could promote federalism, for example, by resisting the temptation to federalize more crimes. But how can a member of the US Sentencing Commission promote federalism? Not being sarcastic, I just don't get it.
Posted by: Thinkaboutit | Apr 18, 2013 11:07:30 AM
Read Pryor's concurrence, then read Judge Martin's dissent. He's useless.
Posted by: D | Apr 18, 2013 2:58:09 PM
Thinkaboutit, this is an excellent question that merits its own post, which I will do as time permits. But, for a quick answer, consider the latest USSC report about the difficulty of fairly sentencing federal child porn downloaders. I think a commitment to the idea that "we must reverse the federalization of crime" might lead someone like Judge Pryor to repond to this report by urging Congress to urge federal prosecutors to refer CP downloading cases to state authorities and only to spend time/energy prosecuting at the federal level CP producers. We sort of --- but not really --- have this approach in drug crimes, where we think the states should deal with the consumers, while the feds deal with the producers/distributors. Judge Pryor might be a voice on the USSC to respond to sentence data with recommendations to get the feds out of this particular area.
That is an incomplete answer to a great question, concerning which I will write more in the day ahead (in part because USSC-nominee Professor Rachel Barkow has also been a pro-federalism voice in modern sentencing conversations, too).
Posted by: Doug B. | Apr 18, 2013 3:43:04 PM
It's going to take a very committed federalist to resist the temptation to push CP cases federal, especially when the penalties are so much higher in federal court. Self-proclaimed federalist prosecutors and AGs across the country have predictably shed the federalist urge in favor of streaming these cases into federal court. Of course, that generalization is not to say anything about Judge Pryor. Nor is the shedding of ideological commitments for practical purposes a phenomenon limited to the right.
Posted by: AnonymousOne | Apr 18, 2013 5:23:00 PM