New Senate bill to add defender ex officio position to US Sentencing Commission

As detailed in this press release from earlier this week, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) [have] introduced the Sentencing Commission Improvements Act, legislation that would for the first time add an ex officio member with a public defender background to the U.S. Sentencing Commission."  Here is a link to the short bill, and here is more from the press release:

Currently, the Commission consists of seven members from both political parties appointed by the President and two ex officio, nonvoting members, the Attorney General or a designee and the U.S. Parole Commission chair. However, unlike the majority of state sentencing commissions, the federal Commission lacks a representative from a public defender background who would provide an essential perspective on the criminal justice system. 

“The federal Sentencing Commission was created to be fair, impartial, and capable of providing evidence-driven improvements to our sentencing system, which is fraught with disparities,” said Senator Booker. “Adding a statutory member to the Commission with a public defender background will ensure that the Commission’s ranks include this distinct and essential perspective on our criminal justice system and, thus, bring us one step closer to a more balanced and just system.”

“The U.S. Sentencing Commission is tasked with establishing practices and policies to promote transparency and reduce sentencing disparities, but the Commission is missing a crucial perspective from the federal public defender system. If we hope to improve sentencing policies in America, we must balance the Commission’s membership by adding a nonvoting federal defender,” said Senator Durbin. “The Sentencing Commission Improvements Act will remedy the Commission’s blind spot and move us toward a fairer sentencing process.”

This new Law360 article, headlined "'No-Brainer' Bill Would Add Fed. Defender To Sentencing Body," provides some more background and details.  Here is an excerpt:

A Senate proposal Tuesday would create a new seat on the U.S. Sentencing Commission for former federal defenders, a move experts say would counterbalance the outsize influence that current and former prosecutors have over the currently dormant panel....

New York University professor and former U.S. Sentencing Commission member Rachel Barkow cheered the proposal. "The Department of Justice has a seat at the table — literally — with a DOJ rep attending all the Commission's meetings," she told Law360 in a statement Wednesday. "It would be helpful to have a defender there as well to offer that perspective.  The Commission has always had plenty of people serving as commissioners who were former prosecutors, and public defense experience is equally valuable."

Brian Jacobs, a former New York federal prosecutor who now specializes in white collar defense with Morvillo Abramowitz Grand Iason & Anello PC, called the proposed move a "no-brainer."  "Speaking as a defender — but even wearing my former prosecutor hat — it makes sense to want to have that sort of balanced input," he told Law360....

Without a quorum last year, the commission missed the chance to shape sentencing policy in response to the coronavirus pandemic — something public defenders are particularly equipped to weigh in on, according to Jacobs. "There's no reason there shouldn't be language in the guidelines addressing how much more difficult time in custody is right now," he said, referring to viral outbreaks, remote court snafus, and restrictive prison policies limiting defendants' ability to meet with counsel. "If the sentencing commission were more nimble, you can imagine there would have been a statement in the guidelines themselves."