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March 17, 2022

Pleased to see SCOTUS nomination of Judge Jackson bringing more attention to US Sentencing Commission

As folks gear up for next week's Supreme Court confirmation hearing in the Senate, I have been quite pleased to see a number of recent news stories focused on the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her work on SCOTUS.  Here is a round-up of the most recent pieces:

From Law360, "Sentencing-Commission Years Prepped Jackson for High-Court Job"

From USA Today, "Supreme Court pick Ketanji Brown Jackson could have 'profound' impact on sentencing"

From the Wall Street Journal, "Once Home to Ketanji Brown Jackson, Sentencing Commission Now Sits Quiet as Issues Go Unresolved"

The last of these pieces effectively reviews the broader concern of the USSC lacking a quorum of Commissioners for many years, while flagging how important this body could and should be while the FIRST STEP Act is still being implemented and there remains considerable bipartisan support for some forms of sentencing reform.  Here is an excerpt from the WSJ piece:

President Biden is in position to appoint the whole commission anew, when there is bipartisan support for making some aspects of federal sentencing less harsh. The president, however, hasn’t yet nominated a slate of commissioners and the White House declined to comment on when he may do so.  “The potential for the commission to do big things with the right set of people is huge,” said New York University law professor Rachel Barkow, a former commissioner.

The commission’s acting chairman and lone member, U.S. District Judge Charles Breyer, said he hopes a new commission will conduct a comprehensive review of the federal guidelines. “Science and evidence has come forward suggesting that lengthy sentences do not necessarily result in community safety,” said Judge Breyer, who will remain on the commission until the end of the year.

UPDATE: Though I wanted this post to focus mostly on the USSC, I figure an afternoon update is justified in light of more notable headlines and articles concerning Judge Jackson history and position as an historic SCOTUS nominee:

From the New York Times, "As Jackson Faces Senators, Her Criminal Defense Record Is a Target"

From The Hill, "Hawley says sentences in 10 child porn cases raise red flags on Supreme Court pick"

From Politico, "Durbin, White House slam emerging GOP attack on KBJ sex offender rulings"

From Forbes, "Americans Support Jackson’s Supreme Court Nomination 2-To-1, Study Finds"

March 17, 2022 at 09:50 AM | Permalink


Ah, KBJ again. Let’s ask her why she was part of an organization that invited the racist kook Leonard Jefferies to speak and said nothing.

Posted by: Federalist | Mar 17, 2022 10:02:01 AM

It's a common problem that Federal commissions can go without a quorum for long periods. For instance, the Federal Election Commission lacked a quorum for most of 2020. The article says that the USSC lost its quorum in 2018 when it went down from four members to three. But the USSC is supposed to have 7 members. It has not been at full strength since 2014. It's obviously problematic when Federal law gives the USSC such a central role in criminal sentencing, and yet, provides no way for it to function when there are not enough Senate-confirmed members.

Many roles in government have provisions for acting members. For instance, if there is no Senate-confirmed Secretary of the Treasury, the president can install an acting secretary. The alternative of a Treasury with no one in charge of it would obviously be a bad idea. (This is true of most cabinet posts.)

But there is evidently no way for the president to install acting USSC members.

Posted by: Marc Shepherd | Mar 17, 2022 12:08:53 PM



Buried in there is discussIon of her law review note. Doug, what’s your view on her note? I believe in harsh punishment for serious sex offenses—but I also believe that many so-called non-punitive affirmative duties imposed on sex offenders are of questionable constitutionality, so without having read the note, I’ll withhold judgment.

Posted by: Federalist | Mar 17, 2022 1:10:18 PM

Marc, you raise an interesting administrative law question -- whether the President can install acting Commissioners in an agency that resides in Article III, not Article II. I am curious if anyone has come across any scholarship on whether such acting appointments would be constitutional.

Posted by: 3553a | Mar 17, 2022 2:00:21 PM

Federalist: I have not yet had a chance to read KBJ's law review note, but I know Senator Hawley is now citing it and her work on USSC and some CP sentencings to argue she is "soft" on sex offenders. I doubt I will have a chance to read the full record to share a fully informed opinion, but the vast majority of criminal justice decision-makers share your sense that many of our sanctions against lower-level sex offenders are too punitive. That Judge Jackson had a similar view before and while serving as a judge would make her quite "mainstream." More than 2 of 3 sentences in the federal system for non-production CP possession are below the guidelines.

Posted by: Doug B. | Mar 17, 2022 4:29:38 PM

@3553a: There are also serious constitutional questions whether a forum like the USCC even belongs in the Judicial Branch. In a great dissent, Justice Scalia argued that the entire USSC was unconstitutional, but he did not prevail on that point.

Posted by: Marc Shepherd | Mar 18, 2022 12:24:56 PM

My issue is not that they are too punitive—but are of dubious constitutional basis.

Posted by: Federalist | Mar 18, 2022 4:26:03 PM

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