Notable new coverage of possible notable new appointment to US Sentencing Commission

Beth Reinhard has this interesting new Wall Street Journal article headlined "Sessions Promotes Tough-On-Crime Judge for Sentencing Panel."  The subheadline of this piece reports the core story: "Attorney General urges White House to nominate judge once nicknamed ‘Hang ’Um High’ Henry Hudson to panel that issues sentencing guidelines."  And here are excerpts:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines.  Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders.  In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year.  He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder.  “However, I offer no apologies.”

I do not know enough about Judge Hudson's sentencing (and political) history to know if he really would be eager or able to "shake up" the US Sentencing Commission, but I do know that advocacy by the US Justice Department always has a big influence on the USSC and that influence is likely only to grow if (and when?) the USSC is populated by Commissioners recommended by the Attorney General.  In recent years under the direction of Judge Patti Saris, who serves as USSC Chair from 2010 to 2016, there seemed to be a concerted effort by the Commission to act only via consensus. If Acting Chair Judge Pryor continues that ethos, it would be hard for a single USSC member to radically reverse the direction of USSC activity (though a single member could be able to block initiatives favored by many other colleagues). This article is written in a way that makes me think Judge Hudson will definitely be nominated to the USSC position, and it will be interesting to see who else might be (soon?) emerging as names for other open USSC spots.

Appropriately, this WSJ article reference the US DOJ's recent letter to the USSC about guideline amendment priorities, which the USSC has made available here.  Unsurprisingly, this letter starts by stressing the crime concerns that have been emphasized by AG Sessions in recent months.   The article fails to note another way AG Sessions can and has exercised some influence, namely through the Justice Department's "ex officio" position on the USSC.  As the end of the DOJ letter reveals (and as the USSC's own website reveals here), AG Sessions has recent put Zachary Bolitho in the role of DOJ's ex officio member of the USSC, whom I believe shares a lot of the "tough-on-crime" perspectives of his long-time boss Steve Cook.   (Zac just happens to be an OSU Law grad and was an award-winning law professor at Campbell Law before his recent re-appointment to DOJ, so I know and greatly respect Zac personally and professionally.)