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December 6, 2021

When exactly in "early 2022" might we expect Prez Biden's nominees to the US Sentencing Commission?

The question in the title of this post is prompted by this new Law360 article, which discusses the quorum-less status of the US Sentencing Commission and includes a prediction from the last remaining Commissioner as to when new USSC nominations may be forthcoming. The piece is headlined "Biden's Inaction Keeps Justice Reform Group Sidelined," and here are a few excerpts:

In November, Reps. Kelly Armstrong, R-N.D., and Jamie Raskin, D-Md., sent a letter to Biden urging him to fill vacancies on the Sentencing Commission, saying that the commission's inability to issue sentencing guidelines for the First Step Act could result in "uneven application of the law."

"It is imperative that the vacancies are expeditiously filled so the commission can continue its work to improve the federal criminal justice system," the pair said in the Nov. 22 letter.

Armstrong told Law360 that he sent the letter to Biden because having the commission's input would be beneficial as the Senate considers advancing the EQUAL Act, or Eliminating a Quantifiably Unjust Application of the Law Act — a proposed law that would completely eliminate sentencing disparities between crack and powdered cocaine offenses.  The bill has passed in the House.

"Nobody's ever lost an election being tough on crime, so if you want reasonable smart policy changes, you need experts to give you the advice, because then, you can utilize that, and you don't take as much political heat," Armstrong said about the Sentencing Commission.

Congress is currently considering several sentencing reform bills in addition to the EQUAL Act.  Though lawmakers are running out of time to pass the proposed laws with its winter recess scheduled to start Dec. 11.  Four of the proposed sentencing reform bills — the Smarter Sentencing Act, the Preventing Unfair Sentencing Act, the RAISE Act and the Ending the Fentanyl Crisis Act — specifically call on the Sentencing Commission to review and revise its sentencing guidelines, if necessary to comply with the legislation.  However, the commission wouldn't be able to comply with these directives as long as it lacks a quorum.

A White House spokesperson did not respond to a request for comment about why Biden hasn't nominated commissioners for the Sentencing Commission yet or when he will announce his nominees.

Breyer, the sole remaining commissioner, told Law360 that he has been in contact with the White House and believes it is currently vetting candidates. He said that he is hoping for a slate of nominees in early 2022.  The White House is "certainly overworked, but I still think that there is some priority in getting this taken care of," Breyer said.

If there truly was "some priority" in staffing the US Sentencing Commission, I think we would have and could have already seen some USSC nominees now 11 months into the Biden Administration.  But I suppose this setting justifies the old saying "better late than never." 

I sincerely hope Judge Breyer's prediction of "nominees in early 2022" means sometime in January or February.  The process of Senate confirmation likely takes a few months even under the best of circumstances, and the prospect of confirmations would seem to diminish as we get closer to the midterm elections.  So even uncontroversial nominations made in January might not result in a full and functioning Commission until Spring 2022.  I fear later and/or controversial nominees could mean we do not get a full and functioning Commission at all in 2022.     

A few of many prior recent related posts:

December 6, 2021 at 10:58 AM | Permalink


Maybe, if we have bipartisan letters by SENATORS, preferably with ten Republicans involved, things might go faster while the Republicans are blocking a bunch of other people and other things.

This is all suggested by VP Harris in some cases tiebreaking, which VP Biden never did in eight years.

Posted by: Joe | Dec 6, 2021 12:14:29 PM


With apologies for more spin: By statute, Sentencing Commissioners are members of the judicial branch (see also Mistretta v. United States) and, courtesy of Harry Reid, not subject to filibuster. Thus Biden needs only the 50 votes on the Senate floor he has.

Also by statute, the Commission cannot have more than four members of any one Party, but Biden won't have any trouble finding nominal Republicans who're eager to suck up to the MSM and get puff pieces in the press. They do this by throwing in with the pro-criminal side (and throwing in is about all you get anymore, now that the Guidelines are advisory only and basically can be ignored simply because the sentencing judge has his own policy preferences).

The Commission theoretically has potential for good, but with the nominees Biden is likely to put up, it will just be a cheering section for no- or low-bail for violent criminals, etc. so we can get more Waukesha massacres.

Posted by: Bill Otis | Dec 6, 2021 4:43:06 PM

Yes, a bit of spin there, since executive nominees are not subject to filibuster because of a long history of things (not just Harry Reid) & ultimately a change of the Senate rules (requiring a majority).

But, it's okay. That's just you being you. A bit of garnish.

If Biden has not trouble finding "nominal" Republicans (whoever they might be) to help him fill the vacancies, it should even easier to have them sign letters like the single Republican member of the House did.

I'm not really speaking to who he would pick here. Prof. B. here has focused on "Prez Biden," but I think it useful (along with at least one other person who comments here) also to cite senators. Given the general reality of things, which goes beyond the limited focus on this blog in particular, it is about a lot more than him here.

This vacancy situation has been going on for a while, before he was President, so it is far from surprising to me that while everything is going on, it is put on the back burner. So, again, maybe if a bipartisan bunch of senators can give him a push, that would help.

The professor here thinks filling the vacancies is important. So, just saying in that context.

Posted by: Joe | Dec 6, 2021 4:54:27 PM

Do the federal Sentencing Guidelines actually say anything about bail? Or should Bill's comments be taken seriously rather than literally?

Posted by: Curious | Dec 6, 2021 9:14:55 PM

Curious --

The Guidelines say nothing about bail, but Sentencing Commissioners are nowhere limited in expressing their opinions on criminal justice "reform" just to the Guidelines. Moreover, since the Guidelines now are advisory only, and never binding, one of the most important potential thrusts of future Commissioners is -- as many of those rooting for their appointment earnestly want -- as cheerleaders for the broader goal of a more forgiving and less punitive system. Low or no bail is a major part of that agenda. It also played a central role in facilitating the Waukesha massacre, including the murder of an eight year-old -- a subject in which your comment expresses zero interest.

Posted by: Bill Otis | Dec 6, 2021 10:58:49 PM

Bill, since you were once a nominee for the US Sentencing Commission, do you have a developed position on what you think the USSC ought to be saying about bail in the federal system? Do you think it ought also address state bail practices and the on-going debates over these practices?

Notably, 28 U.S.C. § 991 says, inter alia: "The purposes of the United States Sentencing Commission are to establish sentencing policies and practices for the Federal criminal justice system that .... reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process." That statutory section also says the USSC is to "develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing..."

I think a reasonable argument could be made that this congressional statement of purposes could possibly justify an examination of federal bail practices by the USSC, but I have a hard time seeing state bail practices as included within this statutory "charter." But since you were once a USSC nominee, I suspect you have given more thought to the proper work of the Commission and I would thus be eager to hear more about what you think should fairly be on a new Commission's agenda.

Posted by: Doug B. | Dec 7, 2021 12:29:41 AM

Bill, I'm very interested in preventing the next Waukesha. That's why I took your comments seriously, and asked whether there was any merit to your claim that the membership of the federal Sentencing Commission had anything to do with it. Based on your response, it seems the connection is tenuous, at best.

Posted by: Curious | Dec 7, 2021 8:48:45 AM

Correct me if I am wrong - but doesn't the Bail Reform Act of 1984 and 18 USC 3142 address bail/pretrial release in the federal system - specifically that a defendant should be released unless the defendant poses a risk of flight or a danger to the community and there are no conditions or combination of conditions that can mitigate those risks.

Posted by: atomicfrog | Dec 7, 2021 9:05:29 AM

Curious --

"Bill, I'm very interested in preventing the next Waukesha."

Then you might have mentioned it, but better late than never. What proposals do you support that will keep dangerous repeat criminals locked up rather than put back on the street.

"That's why I took your comments seriously, and asked whether there was any merit to your claim that the membership of the federal Sentencing Commission had anything to do with it."

No, that is not what you asked. You asked whether "Sentencing Guidelines...say anything about bail?" There is a difference between Sentencing Guidelines and Sentencing Commissioners, as you surely know. Just as judges often teach on the side or participate in panels and legal forums, Commissioners also are free to, and do, speak publicly about numerous different aspects of the criminal justice system apart from writing Guidelines.

Posted by: Bill Otis | Dec 7, 2021 10:00:29 AM

Doug --

"Bill, since you were once a nominee for the US Sentencing Commission, do you have a developed position on what you think the USSC ought to be saying about bail in the federal system?"

I confess that I do not.

"Do you think it ought also address state bail practices and the on-going debates over these practices?"

No, I do not think the Commission qua Commission should address state practices. Individual commissioners are of course free to speak about that as they may wish.

The main thing by far that should be on the Commission's agenda is putting teeth back in the Guidelines, i.e., restoring mandatory or at the minimum presumptive Guidelines along the original, pre-Booker model. Bill Pryor leans more toward presumptive and I lean more toward mandatory (with departures for reasons explained on the record and subject to de novo review). But neither of us got a floor vote, so we're back to our old jobs. (In a Cotton administration, I'll be pushing for him, a very solid judge and an intellectual, to replace Justice Breyer).

In the post-Booker world, sentencing has done a lot of backsliding toward the lottery we had before. The overwhelming bi-partisan Congressional consensus that adopted the SRA of 1984 understood why that's a really bad idea.

Posted by: Bill Otis | Dec 7, 2021 10:16:16 AM

Bill, do you have data to support the "backsliding toward the lottery" assertion? I was just on a research webinar that presented lots of data suggesting (a) recent federal sentencing realities are relatively similar to those in the pre-Booker era AND (b) that much of the disparities identified are the product of prosecutorial discretion as much or more than judicial discretion.

Also do you have a prediction for exactly when there will be a Cotton administration? Are you calling for a quick coop, since Justice Breyer seems likely to be retiring soon AND Judge Pryor is soon to be 60.

Posted by: Doug B. | Dec 7, 2021 2:08:20 PM

Doug --

"Bill, do you have data to support the 'backsliding toward the lottery' assertion?"

Yes, but I'll have to find them. As you might imagine, I was doing more to keep up with this stuff three years ago than now.

I do recall that, at the very outset in 1987 and '88, within-range sentences were given close to 80% of the time. Now it's closer to 50%, meaning that a defendant has as good a chance of getting some sort of departure as he does of getting a within-range sentence. When it's statistically a coin flip, that is not a model of "justice" anyone would want, and not the one the SRA Congress envisioned.

"I was just on a research webinar that presented lots of data suggesting (a) recent federal sentencing realities are relatively similar to those in the pre-Booker era AND (b) that much of the disparities identified are the product of prosecutorial discretion as much or more than judicial discretion."

By a fare-thee-well, the most significant cohort of prosecutorial discretion is exercised to benefit the defendant, in particular, the decision when to make a substantial assistance motion and how much of a benefit to recommend. If you want to end such prosecutorial discretion, I must dissent.

"Also do you have a prediction for exactly when there will be a Cotton administration?"

January 20, 2025.

"Are you calling for a quick coop..."

I was at one point, but the chickens wandered away. The much slower coup will occur in my usual stodgy way courtesy of the 2024 election.

"...since Justice Breyer seems likely to be retiring soon AND Judge Pryor is soon to be 60."

If you have any inside dope on Breyer, do tell! He's aged for sure, but his mind is still strong, so my guess is he'll stay as long as he likes going to work. As to Bill Pryor, I saw him at the FedSoc Convention three weeks ago and he looks and sounds great.

Posted by: Bill Otis | Dec 7, 2021 5:07:22 PM

Lots we could discuss here, Bill, but I will just focus on one key point in seeking clarification. Are you indicating that as long as prosecutors are largely responsible for creating disparity in the exercise of their charging/bargaining/5K motion discretion, you are not at all troubled and are not eager to rein in (or seek more data/transparency) regarding that discretion? My sense is that prosecutorial discretion is so opaque and disparate and so unconstrained by any model of "law" or "justice" that most defendants would be grateful to have an actual coin flip decided how such discretion is exercised. But from past conversations, I think you do not support any kind of "mandatory or at the minimum presumptive guidelines" that would control prosecutorial charging/bargaining/5K motion discretion. So is it fair to say you a fine with criminal justice lotteries run by prosecutors, just not others?

I guess I will also readily offer a bet here, too, because I also recall your liking to make such offers. I am prepared to bet that Justice Breyer is no longer on the Court in 2025 (though I surmise you are predicting GOP efforts to keep his seat open for years). I am even more confident that Judge Pyror's age now all but ensures he will not get a nomination to SCOTUS. Over the last quarter century, the average age for successful nominees has been around 51; over the last half century, the track record for SCOTUS nominees 60 or older has not been great, with Judge Bork being rejected by the Senate, and Judge Garland and Harriet Myers not even getting a hearing. Judge Ginsburg did make it through at 60, but Judge Pryor with be 62.5 by January 2025.

Posted by: Doug B. | Dec 8, 2021 10:22:52 AM

Doug --

I'd be happy to go along with published guidelines for plea bargaining and the making of 5K motions, so long as their enforcement is a matter solely for the executive branch. I've been around the track too many times to miss the fact that a proposal for bargaining guidelines without that limitation is simply a backdoor way to get the Nancy Gertners and Jack Weinsteins of the world to run the plea bargaining show. That is not the law and never has been, for good reason.

Right now, defendants have 100% power to end any "abusive" bargaining by prosecutors by telling the government they will insist on their absolute right to a trial, and good luck Mr. Tough Guy Prosecutor proving every element of the offense to a unanimous jury beyond a reasonable doubt. If the defendant instead prefers to cut himself a break by bargaining, as most of them are very, very eager to do. fine, but he's going to have to do his own negotiating, not have the courts put their thumb on the scale. Of course if the judge thinks the bargain is no good, he can, under present law, refuse to accept it. Again, fine with me.

I do think you might enjoy Clark Neily's and my showdown on this subject, https://www.youtube.com/watch?v=3i92-ojQ8to

I have my disagreements with Breyer to be sure, but he's a courteous man with a wicked sense of humor, so I'm not going to bet on his death or retirement. He's also a free speech liberal rather than on of these crypto-fascist Wokesters, which is another reason to want him to continue to be in public life at least for a few more years.

You might be right that Bill Pryor's time has come and gone, which is too bad, because he would make an excellent Justice. So if he's no longer in the mix, perhaps you'll join me in supporting Miguel Estrada. With Sen. Leahy now retiring, perhaps the first Hispanic male might have a better chance than before, no? Or there's our mutual friend Judge Amul Thapar, who I think has quite a good chance in the next Republican administration three years from now.

Posted by: Bill Otis | Dec 8, 2021 11:14:25 AM

I have long thought highly of Mr. Estrada, though I do not know him or his work well (and it is interesting to speculate as to whether Sen Leahy would have been happier with him on the Court than Justice Alito). I am a very big fan of Judge Thapar, and I am disappointed he did not make the cut with Prez Trump.

As for published guidelines for plea bargaining and the making of 5K motions, I would assume they would be functionally advisory just like the sentencing guidelines now are for judges. Would you agree to start reform there, with rigorous data about the exercise of prosecutorial discretion collected and published by the USSC and/or DOJ, and then see if that diminishes the lottery concerns you have about the current sentencing system. I think a lot more data and transparency about charging, plea bargaining and the making of 5K motions would go a long way. After all, you can find federal data on the exercise of judicial discretion, but not on the exercise of prosecutorial discretion. And, as mentioned before, studies trying to unpack these issues generally find more prosecutorial-driven disparities.

Posted by: Doug B. | Dec 8, 2021 3:09:47 PM

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