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October 24, 2021

Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission?

As we reach a full nine months into the Biden Administration, I must yet again express my frustration that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for most of the last five years, and the USSC has not had complete set of commissioners in place now for the better part of a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now nearly three years since that law's enactment.

In this post months ago, I highlighted that all the openings on the USSC provide the Biden Administration with an opportunity to appoint transformative commissioners who could make the US Sentencing Commission a potent criminal justice reform leader.  Especially at a time when there is broad bipartisan interest in continued federal sentencing reforms, but Congress is consumed with a number of other concerns, there are an array of large and small improvements to the federal sentencing system that the USSC could and should be able to advance.  Effective appointments to the US Sentencing Commission could provide the foundation for advancing badly needed structural and institutional federal sentencing reforms for years and even decades to come.

During the 2020 presidential race, Biden’s campaign included a commitment that "Biden will take bold action to reduce our prison population."  To date, Prez Biden has not taken any tangible action to reduce prison populations.  Indeed, after a number of years of decline, official data show that the federal prison population is growing again.  Though a properly staffed US Sentencing Commission could not immediately ensure reductions in the federal prison population, the USSC can be an effective agent of decarceral reforms. As I have stressed before, shrewd and bold nominations to the US Sentencing Commission could and would serve as an effective way for Prez Biden to signal a real commitment to criminal justice reform while also reviving an agency with a long history of impactful work on the federal sentencing system.  

A few of many prior recent related posts:

October 24, 2021 at 11:14 PM | Permalink


Short answer: Yes, you should.

Posted by: restless94110 | Oct 25, 2021 11:32:23 AM

Meanwhile, he has done various things that has furthered the interest of criminal justice (including his judicial nominations, including a previous vice chair of the Sentencing Commission, Judge Ketanji Brown Jackson).

These are all things that were promised.


It is fine to push him some more, including during his first year while a range of things are happening [including delays in nominations in general by Republicans slowing down the process] regarding this specific issue.

The current sole member is Judge Charles Breyer, yes, that guy's brother. The lack of urgency is suggested by this quote I found in an article from earlier this year:

The system functions “reasonably well without a commission,” partly because the guidance is only advisory, said Douglas Berman, a professor at Ohio State University’s Moritz School of Law who focuses on sentencing. Some constituencies, including the defense bar, may have even welcomed not having new guidance over the past several years, he said.

That guy sounds like he should get a blog. There are, of course, drawbacks, but with so many balls in the air, choices are made what to deal with first.


Do continue to push on though I personally would take care when grading on a curve.

Posted by: Joe | Oct 25, 2021 12:10:41 PM

Why do you mindlessly put all the blame on Biden? How about Manchin and Sinema and ... I dunno, all 50 R Senators who could also ensure a rapid and uneventful confirmation if they so desired? Is Joe Biden the only elected Democrat and the only person in the entire federal gov't with agency (no pun intended, seriously)? Everyone else can think and act for themselves too, right? Surely you're aware of their existence, aren't you? And if they don't do their part, then they also deserve plenty of blame.

What exactly is the point of Biden making a nomination if it's clearly DOA when it gets to the Senate? Messaging and symbolism are important for sure, but you also have to be realistic. What does a failed nomination accomplish? Nothing. And a failed nomination isn't free of negative consequences either. The nominee has to go through arduous vetting and then be put through the ringer in a futile confirmation hearing. And—importantly—it also clogs up the Senate to the detriment of other high-priority business. Finally, every failed nomination gets Biden hammered in the press for looking "weak."

Biden's already struggling now to get some circuit court nominees confirmed, as well as the infrastructure bill(s). Let's be real, those are both higher priority than USSC—especially the former. And that's to say nothing of the ATF nominee who crashed and burned recently. What help does it do to throw a surely-doomed nominee into that existing mix? Zero.

Biden's a savvy veteran of this whole process, and he knows when he has good openings and when he doesn't. If he refrains from putting forward someone, I trust it's because he thinks it's futile and not because he doesn't care or has bad intentions.

Also, on the campaign rhetoric, c'mon, are you seriously that naive? I'm not saying Biden pulled a fast one on everybody, but we all know the campaign stuff is aspirational and statements of values, not airtight promises. Also, before the election, he didn't know he'd be hanging on by a gossamer thread in the Senate right? (Because apparently, even one spare R vote is too much to ask for!) Think of it this way. If I promise today we'll go ice skating next week, and then in the meantime a meteor strike destroys the only skating rink within 1,000 miles, does that mean I lied and broke my promise? Or does it mean I have to cough up for plane tickets and lodging for a rink 1,500 miles away just to make sure the skate date still happens? Of course not.

In the end, there's a huge difference between refusing to do something despite it being in your power, and refraining from doing something that everyone with eyes can see would hopeless anyway. I think we all know which of these situations applies to Biden right now. And since you strangely love to give TP the benefit of the doubt on these kinds of issues—pardons being one example—you could at least do the same for Biden, given what he has to contend with. I note you concede that TP never filled a single spot, and he generally had a much friendlier and compliant Senate to work with. (Not that any of the folks he proposed were desirable of course; they were all nightmares.)

Also, we all realize Biden's not even 1/4 into his term, right? There's no reason to think he won't put forth nominees when conditions improve.

Posted by: kotodama | Oct 25, 2021 12:23:52 PM

This sort of thing does tend to have various parents ..

the USSC has not had complete set of commissioners in place now for the better part of a decade

I think part of this is some sort of short cut where the "Prez" is (if pressed) a stand-in of more than one person.

But, yeah, there are many moving parts here. Again, I don't disagree that he should be pressed. This includes certain things, like his use of his pardon power, that can be done by the executive dept. alone.

Posted by: Joe | Oct 25, 2021 1:09:53 PM

Recent Biden nominees this month include (along with dozens of ambassadors and local EPA/HHS officials): Administrator of the Maritime Administration, Director of Fish and Wildlife Services at the Department of Interior, Commissioner of the Postal Regulatory Commission, Inspector General of the Tennessee Valley Authority, Member of the Securities Investor Protection Corporation, Member of the Board of Directors of the Corpora11tion for Public Broadcasting. Are all these positions higher priority than USSC? If he and his people can find folks for these kinds of role, Biden can and should try to deliver on some of his many criminal justice promises by staffing the most important federal criminal justice agency not within DOJ.

The point that he does not want to make DOA nominations is a sound one, but the FIRST STEP Act got 87 votes in a GOP controlled Senate. Finding nominees dedicated to implementing and advancing that legislation and helping to decide what can be the "next step" ought not be that hard and ought to garner bipartisan support. Indeed, part of the point is that sentencing reform is an area for some potential bipartisan achievements, and they there have been none so far.

I am sure Biden is grateful to have supporters eager to make excuses for his failure to make appointments to an important non-functional government agency. I know of others who are so sure Biden will make such bad selections that they are grateful he has made no selections to date. But I still want to believe in a government that functions and can advance sound policy, and so I will continue to advocate for the US Sentencing Commission to be staffed so it can function and can try to advance sound policy.

Posted by: Doug B. | Oct 25, 2021 4:01:07 PM

This doesn't really refute what is said; it is more advocacy of your particular concerns. Which on the "Sentencing Law and Policy Blog" is understandable up to a point. The specific framing is a bit less handwavable in my view. But, by now, we know how we be.

> Are all these positions higher priority than USSC?

They seem to be a lot easier to put in place.

> should try to deliver on some of his many criminal justice promises by staffing the most important federal criminal justice agency not within DOJ.

He is delivering on criminal justice promises, including by "staffing" the federal courts, which is not a part of the Department of Justice last I checked.

Part of criminal justice is dealing with wider social needs as well (as many criminal social justice warriors continuously argue) & there too, he is doing various things.

>ought not be that hard and ought to garner bipartisan support

If so, why has it been a problem "for the better part of a decade" to fully staff the USSC? It is almost like, for whatever reason, it is complicated. It is sorta hard. If a "bipartisan" bunch of senators, e.g., join together, it would be easier. It isn't all on "the Prez."

>have supporters eager to make excuses for his failure

I'm sure Trump supporters and enablers was happy to have people to frame his criminal justice record "on a curve" and so forth too.

> government that functions and can advance sound policy

Which me, kotodama et. al. think a good idea & includes a range of things, including more than the fairly narrow thing this blog regularly puts above other things.

You can advocate away. The rest that was said above still holds. "Government" includes a lot of things.

Posted by: Joe | Oct 25, 2021 5:05:37 PM

To be clear, again, by now, it is not just HIS failure.

President Biden is working within a system & has to make various decisions & choices. A system a lot more than him.

This is not an "excuse" as much as an explanation. If people want to change things, you need to fully express what is involved.

People repeatedly don't do this. But, go ahead, advocate away.

Posted by: Joe | Oct 25, 2021 5:10:10 PM

I don't want to double up on what Joe said, and 2 against 1 isn't fair odds maybe, but I think some additional responses are called for.

"the FIRST STEP Act got 87 votes in a GOP controlled Senate"

Remind me who was president then?

"ought not be that hard and ought to garner bipartisan support"

Seriously? I think you need to get out more. Again, you need to direct your complaints to the responsible parties there, i.e., Sinemanchin and all 50 Rs. If you truly know of One Weird Trick that Biden's refusing to employ to magically cause those Senators to do his bidding, then by all means, please share it with the class.

"supporters eager to make excuses for his failure"

Maybe it's just me, but I don't equate "having the good sense to refrain from attempting the impossible and looking silly in the process" with "failure." Nominating someone anyway, but then ending up in an unwinnable confirmation fight would be actual failure, right? And one that wastes time, effort, and resources too, whereas judiciously choosing your battles doesn't.

"I still want to believe in a government that functions and can advance sound policy"

Yup, same for me. Is there any doubt Biden shares that belief too? Or all D Senators not named Sinema and Manchin? Again, if you're looking for the actual culprits here, it's not hard to find them.

Posted by: kotodama | Oct 25, 2021 8:48:07 PM

At issue, Joe and kotodama, is the failure of Prez Biden for the better part of a year to put forward even a single name for a key (now dormant) criminal justice agency with six vacancies (and soon to have seven). Biden could --- and I think should --- nominate a sound slate of bipartisan experts (or even just a person or two) and then assail members of the Senate if they did not move forward with that slate. But nearly a year after getting elected, he has not even made a single nomination to this criminal justice agency. (Notably, Trump put up names in early 2018 to try to make a full commission when there were still 4 commissioners making a quorum. But those were bad names, and I certainly fault Trump for not doing better on this front.)

I have reason to hope a believe that there is on-going work behind the scenes to get a USSC slate together that will be able to secure Senate confirmation. But that has been my hope for now 9+ months, and at some point there is an even-increasing risk that eventual nominees get stuck in the midterm vortex.

You are welcome, of course, to not want to criticize the person in charge of making nominations for not yet making nominations. But I will keep pushing for him to make these needed nominations until he makes a visible effort to staff this key criminal justice agency. Again, folks surely can be content with what Prez Biden is doing on other fronts. But, since I care about advancing sound federal sentencing policies, I would like to see the Prez make some effort to staff a now-dormant agency tasked with helping to advance sound sentencing policies.

This seems to me not so provocative -- to urge the Prez to make long needed nominations. But it is nice to discover that there are remaining Biden fans who want to defend him from suggestions he make the nominations he is responsible for making.

Posted by: Doug B. | Oct 25, 2021 10:19:07 PM

"then assail members of the Senate"

You pretty much gave up the game there. So, Biden has this secret fantasy power to make Senators follow his every command, and yet he clearly refuses to deploy it. How awful of him right?! Are you thinking of LBJ giving legislators "the treatment"? Why can't Biden just do that already? Well, LBJ had overwhelming friendly majorities in both houses at his disposal. Do you notice any differences here? Again, Biden is facing serious headwinds just trying to get someone confirmed to CA9, which, let's face it, is more important than USSC. So, just to be clear, you don't blame Sinema, Manchin, or any of the 50 R Senators not lifting a finger to get things done? Are they just statues who lack all agency whatsoever, instead of, I dunno, grown-ass adults who can be responsible for themselves? That's what it seems like to me, but maybe I'm missing something here.

"criticize the person in charge of making nominations for not yet making nominations"

Yes, he is in charge of making nominations. Is he in charge of confirming them too? Last I checked, we had a whole other (half) branch of gov't responsible for that job. You will of course say "but how can they do that if he won't nominate anyone?" Again, that goes to the heart of the faulty assumption you're making. You assume they *want* to confirm all his nominees. But yet, contrary evidence abounds. Look at ATF, look at CA9, just to name obvious recent example. Maybe, just maybe, a guy who spent more time in the Senate *than I've been alive* and 8 years as second-in-command in the Executive knows at least a thing or two about getting appointments through? And—just to be very clear—if they (Senators) are refusing to confirm, it's *their* fault for not doing *their* jobs; it's not Biden's fault that he just recognizes the nature of the situation.

"it is nice to discover that there are remaining Biden fans who want to defend him from suggestions he make the nominations he is responsible for making"

It is nice to discover that there are remaining Sinema, Manchin, and [checks notes] *all 50 Republican Senator* fans who want to defend them from suggestions they confirm the nominations they are responsible for confirming.

Again, just to be clear, I'm first in line to criticize Diamond Joe when he drops the ball on something completely within his power in the executive. I was upset about how he approached the Afghan refugee situation at first. Although, I note that in the end he *absolutely did the right thing* on that. So yes, advocates pushing him to do better can have good results *when it's a situation he exclusively controls*. It just boggles the mind though when people fail to recognize the obvious differences in an appointments situation—that there's a whole other (half) branch of gov't just sitting around failing to do their jobs.

I'm no unthinking, kneejerk Biden booster. He's dropped the ball on other immigration-type areas too, like the Haiti refugees being a recent example. That said, coming in to it, I had modest expectations for him on that score. Closer to the criminal/sentencing heartland of this blog, he's been fairly timid on the federal DP, with just the same moratorium Obama had. Of course, he's been aggressive—in a bad way—in pulling for Tsarnaev to get the DP too. And I remain skeptical until proven otherwise that Garland is really the right man for the job when it comes to opening the whoop-ass can on the 1/6 insurrectionists (or on this blog, can I only say rioters?). In other words, I'm not holding my breath for ... Merri-Ckristmas! (c'mon, I had to lighten this thread up with at least a little humor!)

Posted by: kotodama | Oct 26, 2021 10:07:13 AM

guy who spent more time in the Senate *than I've been alive*

Such a baby.

I don't know what will happen regarding the investigations, but I think many have this vision of what happened during Watergate.

Rachel Maddow's book on Spiro Agnew (talk about a memory hole incident) is striking here. I can't really imagine the Sessions or Barr Justice Department acting like they did there.

And, even with all that happened good during the Watergate investigations (I would also recommend "Watergate Girl"), that took how long to be investigated and prosecuted?

I like this line "reason to hope a believe." Someone who says that might want to ratchet down the potshots at how we don't want to criticize etc. putting aside that it's unfair.

Posted by: Joe | Oct 26, 2021 10:39:35 AM

Woops, I made a math error. Hey, this is a legal blog after all! I clumsily included his VP time as part of his Senator time. So no, I'm not that much of a baby, sadly! But yeah, speaking of Watergate, the fact that Biden got into the Senate *right after that happened* is an equally good way of showing how long he's been honing his game.

1/6 makes Watergate seem so quaint in comparison. It's like the difference between investigating and prosecuting a fender-bender (Watergate) and 9/11 (1/6). Obviously, the urgency isn't very great for a fender-bender. It's a little different when the insurrectionists are out and proud boasting about how close they got to succeeding and *openly* working on plans to do it again soon. Oh yeah, and they have unabashed support from Rs in Congress like Gym Jordan and Paul "The Gozerian" Gosar and Rs in the Judiciary like Trevor McFadden.

Posted by: kotodama | Oct 26, 2021 11:19:30 AM

LBJ, the Afgan refugee situation, Spiro Agnew and Watergate all seem a VERY long way from my concern and complaint that Prez Biden, by failing to put forward a single USSC nominee now 9+ months into his tenure and a full year since his election, is missing an important opportunity to signal a real commitment to criminal justice reform while also reviving an agency with a long history of impactful work on the federal sentencing system.

Kotodama seems to be particularly missing the point that dozens of GOP Senators voted for the FIRST STEP Act and so could be supportive of --- or at least not actively oppositional to --- a shrewd bipartisan slate of reform-minded commissioners. (Some GOP Senators surely voted for the FIRST STEP Act only because Prez Trump supported it, but others surely did because they have a record of support for at least modest federal sentencing reforms. Indeed, at least half of the GOP on the Senate Judiciary Committee have such a record.) And, of course, USSC appointments serve AT MOST 6 years (unless re-nominated), and some would only have 4 and 2 year terms. So the stakes are nothing like a federal judicial slot, though perhaps you might suggest it is somewhat like a district court position. Well, Biden has now made nearly 40 district court judge nominations AND had over a dozen of these folks already confirmed by the Senate (and some with 65+ votes).

So, as I see it, making the USSC functional is not a priority for Prez Biden and his team (nor it seems for most reform advocates). I understand the choice to focus on, and use limited political capital, on judicial appointments and other priorities in the short term. But my post is prompted by the fact that, one year in, it is no longer the short-term AND confirmations get harder and hard as we get closer and closer to an election. Perhaps, if great behind-the-scene work is getting done and and great nominees are eventually named and swiftly confirmed, I will view the Biden "slow play" on this USSC front as brilliant. But I still recall Prez Obama moving way too slow on multiple CJR fronts, which ultimately contributed to Prez Trump being able to lay claim to the FIRST STEP Act because the Obama team ran out of time and political capital once it got serious about these issues late into his second term.

Posted by: Doug B. | Oct 26, 2021 11:30:45 AM

Yes, I think I understand clearly now.

If Biden doesn't insist on going through the motions with futile confirmations that waste everyone's time and detract from higher priorities, that's his fault. And if he refuses to wield his magical powers to command disobedient Senators—who apparently were somehow born without free will; that's quite an interesting phenomenon, maybe we should study them!—that's his fault too. Did I get that all right?

I mean, can you name even one of these phantom Senators who you're so sure is going to play along? Can you point to one instance where you ever criticized a Senator for not cooperating? I feel like you need to watch that Schoolhouse Rock on the different branches of gov't.

Posted by: kotodama | Oct 26, 2021 11:48:35 AM

Wow -
The power to put nonviolent people in cages for decades would seem to me to be one of the most important of government functions. Biden's promise to reform the criminal justice system was taken seriously by legions who supported him.

Since his inauguration, the federal prison population has increased by over 4,000 people. The First step act passed with Trump support along with many republican congressmen resulted in a reduction of over 30,000 people incarcerated in federal facilities.

During the first 5 years of the Obama administration the federal prison population increased by 19,000. He granted 1,715 commutations and 212 pardons in his 8 year administration. He denied over 19,000 clemency petitions - closed without action over 4,000 - and left over 13,000 for the Trump administration.

President Biden promised criminal justice reform and spoke about mercy and compassion. It's time to give up our passion to punish and exercise restraint in using the most powerful tools in the play box, prosecution and incarceration.

Arguments based on feelings rather than data fall on deaf ears to those who are impacted. This data can be found on the bop web site and the doj site. This is not an argument about feelings - it is a statement of fact.

Posted by: beth curtis | Oct 26, 2021 1:39:38 PM

"Biden's promise to reform the criminal justice system"

And, as noted, he did various things to help this, including nominating multiple public defenders as judges. And, he will do more things, this being only October in a first term due to end in January 2025.

The overall message of compassion (emotion will be part of things, as it always will be for humans) and facts is well taken.

We need to push all parties, not just "the Prez," to move in the right direction here. Factoring everything.

The "legions" should understand all that is involved here in pushing for reform.

Posted by: Joe | Oct 26, 2021 2:05:08 PM

kotodama: Here is a quote from a March 2021 Roll Call article (from a post linked above): "Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission 'because both they — the White House — and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work'." That is the GOP ranking member of the Senate Judiciary indicating SEVEN MONTHS AGO that "a lot" of senators want to get the USSC up and running. But Senators cannot do that unless and until the Prez makes nominations.

Why do you think any nominations that Biden puts forward here would be "futile"? Again, he has already gotten dozens of persons confirmed to other judicial branch positions, and has named dozens of others. If and whenever Biden puts forward even a single nominee for the USSC, then we can and should both complain if Senators do not then do their part to staff the USSC. But, since there are not any Biden nominees put forward, what kind of "cooperation" can Senators be expected to provide? It is truly ridiculous to criticize the Senate for not confirming nominees to the US Sentencing Commission when there have not yet been any nominees put forward by Prez Biden. That's the whole point of the post, asking yet again when Prez Biden will get this process moving forward by making long needed nominations to US Sentencing Commission.

Joe: Of course we should urge all parties to do their part to advance sound sentencing reforms. But for the USSC to be able to do its part, it needs at least four Commissioners. And it cannot have any new Commissioners until a Prez makes nominations. Prez Biden has not yet made a single nomination to the USSC, and yet you and kotodama apparently think the fact that Biden is doing other things that you like somehow undercuts concerns that he has not made any nominations to a key agency. But being a Biden fan does not soften his failings in this regard so far. I hope he delivers on this front effectively at some point, but time is always of the essential for a system that puts so many in cages for so many reasons.

Posted by: Doug B. | Oct 26, 2021 4:59:34 PM

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