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May 12, 2021

Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden

As detailed in this official press release, titled "President Biden Announces Third Slate of Judicial Nominees," Prez Biden announced a slate of six new judicial appointments ( three new Court of Appeals nominees and three new District Court nominees.  As detailed in this Reuters article, headlined "Biden latest judicial picks stress public defender work," the new Prez is fulfilling calls to add professional diversity to a federal judiciary now dominated by prosecutors and BigLaw lawyers (see prior posts here and here).  Here are some details:

President Joe Biden on Wednesday announced his latest wave of judicial nominees with six picks who not only reflect his goal of diversifying the federal bench but also include three current or former public defenders for appellate court seats.

The nominees include two attorneys currently with federal public defender offices, Eunice Lee for a seat on the New York-based 2nd U.S. Circuit Court of Appeals and Veronica Rossman for a spot with the Denver-based 10th U.S. Circuit Court of Appeals.

They also include Chief Judge Gustavo Gelpí Jr of the U.S. District Court for the District of Puerto Rico for a spot on the Boston-based 1st U.S. Circuit Court of Appeals, which hears appeals from three states plus the island territory.  If confirmed, Gelpi, who in the 1990s served as an assistant federal public defender, would be only the second Puerto Rican to serve on the court and would replace the first, Juan Torruella, who died in October.

Progressives and judicial reform proponents have long called for more judges on the federal bench with backgrounds as public defenders. More often, judges have tended former prosecutors or defense attorneys from major law firms.  "President Biden has made clear that the days of public defenders being systematically passed over for top jobs on the federal bench are over," Christopher Kang, the chief counsel of the progressive group Demand Justice, said in a statement.  He said no president has before nominated so many circuit judges with experience as public defenders. All five of Biden's nominations so far to the regional circuit courts have had such experience, and three spent the majority of the careers in such positions.

I will be excited to see if and how a group of new federal judges with public defender experience will have a long-term impact on criminal justice jurisprudence coming from the federal courts.  For those interested in short-term reform, however, perhaps it is even more important to see Prez Biden nominate a slate of diverse (and reform-minded) US Sentencing Commissioners. 

Back in February, I wrote a commentary, "Reviving the U.S. Sentencing Commission," which noted that the USSC has historically been dominated by persons with prosecutorial backgrounds; I also lamented that the USSC now needs six new confirmed members to get back to full strength and at least three new commissioners to even be somewhat functional.  At that time, I did not reasonably expect to see needed nomination to the US Sentencing Commission until at least some Circuit and District Judge nominees were put forward.  And, by late March, as reported in this post, there was seemingly serious talk of serious work on slate of nominees for the Sentencing Commission. 

But it is now mid May, and though Prez Biden has put forward 20 judicial nominations, we have still not yet heard anything more about getting the Sentencing Commission back to work.  So ...  color me antsy.

A few prior recent related posts:

May 12, 2021 at 05:46 PM | Permalink


The USSC never achieving a quorum would be the best possible result for federal defendants.

Posted by: AFPD | May 13, 2021 9:35:35 AM

If Biden makes "status-quo-minded" appointments, I would be inclined to agree, AFPD. But if Biden makes "reform-minded" appointments, there are a lot of possible (easy?) guideline reforms that could prove helpful to defendants. Most obviously, the safety valve -2 reduction in the drug guideline could/should be expanded to at least conform with the expanded statutory safety value passed via the FIRST STEP Act. A reform-minded commission might also look pursue pro-defendant reforms urged by many on both sides of the aisle regarding matters like acquitted conduct enhancements and mens rea requirements. I also want to believe that the USSC would look to bring some helpful modern direction to the CR guideline.

I am not expected a very progressive USSC, but the drugs -2 reforms from not that long ago served as a huge reminder that the right kind of little change (made retroactive) can make a big difference. And there may be more bipartisan support for bigger positive changes now than ever before. And though pessimism in this space is always justified, I cannot just (yet) assume that a functioning USSC will be a bad development.

Posted by: Doug B. | May 13, 2021 11:51:50 AM

Fair points. My view is based on compassionate release. As long as there's no quorum, there is no "applicable" 3582 policy statement, and we basically have a federal parole system. This is doing an enormous amount of good for a lot of federal prisoners. Once the USSC has a quorum, I am sure they'll promulgate a new 1B1.13, which, even if good, won't be as a good as the status quo, which allows a judge to release anybody for anything she thinks is an "extraordinary and compelling" reason. I can't imagine any USSC, no matter how reform-minded, doing anything remotely that helpful.

Posted by: AFPD | May 13, 2021 12:20:54 PM

Your concern is well-founded on the CR front, AFPD, but I am hopeful that a new USSC will first take the time to carefully study what judges are finding now to be "extraordinary and compelling" reasons and assess whether more good than bad has come from judges having broad authority in this realm. (In addition, I sense the status quo still also includes a good number of judges not going beyond the current 1B1.13 terms, so any expansion of the CR terms in a new guideline would likely help a number of now-shut-out prisoners.)

Posted by: Doug B. | May 14, 2021 9:00:09 AM

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