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April 16, 2013

Prez Obama makes three great new nominations to the US Sentencing Commission

I am very pleased and excited to have learned that late yesterday the White House officially announced three great new nomination to fill the three now-empty spots on the US Sentencing Commission.  A colleague forwarded me a copy of the official press releases with the appointments, but I cannot yet find it linked on-line.  Ergo, I will rely on this local press report from the Montgomery Advertiser, headlined "Obama nominates Bill Pryor for sentencing commission," for the basics:

President Barack Obama nominated former Alabama attorney general and current U.S. circuit judge Bill Pryor to be a commissioner on the U.S. Sentencing Commission, the White House announced Monday evening.

Pryor, who served as attorney general from 1997 to 2004, serves on the U.S. Court of Appeals for the 11th Circuit. President George W. Bush appointed Pryor to the federal bench in 2004....

Pryor would serve a term that expires Oct. 31, 2017, and would replace commissioner William B. Carr, whose term has expired.

Obama also intends to nominate Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, and U.S. District Judge Charles Breyer of the Northern District of California to the sentencing commission, according to the White House.

I am familiar with and greatly respect the sentencing work of all three of these folks, and I cannot readily think of many persons whom I would be more excited to see joining the U.S. Sentencing Commission. I hope they are all swiftly confirmed and can get right to work on all the area of federal sentencing reform now in urgent need to attention and action.

UPDATE:  The official press release about these nomination are now available at this link.

April 16, 2013 at 10:22 AM | Permalink


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I am a defense attorney in Atlanta with 30+ years of handling federal criminal cases. I don't know about the other two choices, but I do know about Judge Pryor. Respectfully, I cannot think of a worse choice than him from a defense prospective.

Posted by: Steve Sadow | Apr 16, 2013 11:46:20 AM

What are the recusal implications for Judge Breyer's brother in sentencing-related matters if that nomination goes through? I believe Justice Breyer standardly recuses himself in matters where Judge Breyer was the district judge, but that's a tiny percentage of the Supreme Court docket compared to the number of matters where interpreting the USSC's output is potentially at issue.

Posted by: JWB | Apr 16, 2013 1:59:11 PM

Gezzz , I agree with Mr. Sadow, why not put Otis on the Commission.

Posted by: Steve Prof | Apr 16, 2013 5:57:52 PM

"Respectfully, I cannot think of a worse choice than him from a defense prospective."

"Gezzz , I agree with Mr. Sadow, why not put Otis on the Commission."

It's actually a pretty shrewd move. Not so much an olive branch, but more like an entire olive tree that can be shoved down the throats of various Republican pricks in the Senate. Obama reached across the aisle and put one of the most conservative lunatics in the entire federal judiciary in a relatively prominent position. Blocking Obama's nominees now makes Grassley et al. look even more ridiculous than they already do, if that's possible.

Posted by: The Death Penalty Sucks. | Apr 16, 2013 7:01:41 PM

I'd like to think the Administration is playing a long game here by believing that putting Judge Pryor on the Commission can provide some cover for scaling back mandatory minimums, but I doubt this is much more than a prosecutor-friendly pick motivated by DOJ.

Posted by: Anon | Apr 16, 2013 7:06:04 PM

I wouldn't think that Justice Breyer would have to recuse often, if at all, because of his brother's service on the USSC. Courts rarely hear direct challenges to the validity of a regulation the Commission has promulgated -- sentencing cases that have reached the Court in recent years are almost all constitutional or statutory. Lower courts, of course, constantly interpret and apply the guidelines, but even there they aren't usually deciding whether the USSG themselves are valid, in the way a court might review an EPA decision or the like.

As for Pryor, I imagine this was a package deal to ensure quick confirmation of all three. One Republican, one Democrat, and one wild-card who clerked for Scalia but whose work suggests she takes a more institutionalist view of the Commission's role. Also probably helps that the ranking member of the Judiciary Committee is Sen. Sessions from Alabama.

Posted by: Flashman | Apr 16, 2013 8:22:07 PM

When Bill Pryor was the Attorney General of Alabama, he proudly defended Alabama's use of the hitching post as punishment (hitching a prisoner to a post in the hot sun without bathroom breaks), saying that even though Alabama was the only state that used it, it had a right to impose more severe punishments than other states. The Supreme Court rejected the argument and declared the hitching post cruel and unusual punishment. Since joining the Court, he was part of an en banc decision overruling a panel which had upheld an 18-year sentence imposed by a district judge. The en banc Court increased the sentence to 30 years. He has no real criminal justice experience and no federal criminal experience before joining the Court. As a politician, he was something of a demagogue, once proclaiming "No more Souters" with regard to Supreme Court nominees. It makes no sense to appoint someone whose primary activity off the court is appearing at Federalist Society conferences advancing a right-wing agenda.

Posted by: Stephen B. Bright | Apr 17, 2013 12:26:44 AM

All are rent seeking lawyers. None represents the interest of public safety. All will support more procedure. None will support the killing of violent criminals to end crime in this country by getting rid of them.

Dismal news for crime victims. Crime victims are totally on their own, deserted by our government, a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession.

All who believe prayer works should pray that these members of the lawyer hierarchy get car jacked. Naturally, they all live in neighborhoods that are nearly crime free. How? These neighborhoods are often walking distance to the most dangerous slums in the land. Simple. In a lawyer residential neighborhood, try robbing a store. Three squad cars arrive in 2 minutes, with college educated police, blasting. The death penalty is at the scene in the lawyer neighborhood, for the hapless criminal who has not received the memo. There is never an excessive force litigation in that neighborhood.

Posted by: Supremacy Claus | Apr 17, 2013 12:29:39 AM

Unless these nominees are going to work exclusively to radically simplify the non-empirical and often congressional hissy fit driven mess of twaddle masquerading as sentencing science, I am non-plussed. The guidelines are like the streets of Los Angeles--constantly under repair and never fixed.

Posted by: USPO | Apr 17, 2013 7:08:47 AM

Is it selfish of me to be glad of the Pryor nomination simply to get him off of the 11th? Maybe we'll get a half-decent new judge to replace him.

Posted by: Ala JD | Apr 17, 2013 10:50:52 AM

Ala JD. Sorry to burst your hopes, but service on the Sentencing Commission is in addition to his current responsibilities. A judge does not have to resign his full-time court position to serve as a part-time Sentencing Comnmissioner.

Posted by: tmm | Apr 17, 2013 11:08:04 AM

"Obama reached across the aisle..."

You do realize that he's required by law to "reach across the aisle" because the USSC can't have more than four members of any one party, right?

"[Pryor] has no real criminal justice experience and no federal criminal experience before joining the Court."

Nine years as a state attorney general and deputy attorney general isn't "real criminal justice experience"?

"Since joining the Court, he was part of an en banc decision overruling a panel which had upheld an 18-year sentence imposed by a district judge. The en banc Court increased the sentence to 30 years."

Mr. Bright doesn't mention what case he's talking about, perhaps in the hopes that readers will think Judge Pryor imposed an outrageously severe sentence for some trivial offense. In fact, Mr. Bright is almost certainly referring to U.S. v. Irey, a case in which the district judge imposed a well-below guidelines sentence for what one judge called an "utterly gruesome" case of sexual exploitation of multiple children between the ages of 4 and 16. The en banc opinion joined by Judge Pryor - as well as Clinton-appointed Judges Hull, Wilson, and Marcus-- simply imposed the 30-year guidelines sentence.

Posted by: Anon | Apr 17, 2013 11:12:33 AM

Anon --

Great post. Nailed it on every point.

Posted by: Bill Otis | Apr 17, 2013 11:35:09 AM

I don't want to get into a huge debate about Pryor, and I doubt I agree with his every view on criminal law, but he does have substantial experience with (and interest in) sentencing reform, having been instrumental in the creation of the state sentencing commission in Alabama in the late '90s, which has done something to clean up what was a completely chaotic system before that. It's not as if Obama just pulled the name of a Republican-appointed judge out of a hat, and I doubt that Pryor views the role of the USSC as imposing the longest possible sentences on everyone, as some seem to be implying.

Posted by: Flashman | Apr 17, 2013 12:08:23 PM

Judge Pryor must be damn good judging by the wailing and gnashing of teeth.

Posted by: TarlsQtr1 | Apr 17, 2013 1:41:15 PM

TarlsQtr1 --

Pryor is first rate.

Posted by: Bill Otis | Apr 17, 2013 3:29:43 PM

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