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April 5, 2023

US Sentencing Commission promulgates numerous consequential new guideline amendments (while defering resolution of other big issues), with big division on compassionate release

As USSC Chair Judge Carlton Reeves stressed in this lengthy and moving openning statement, the US Sentencing "Commission has done an extraordinary amount of work over the last six months."  That work in part culminated today in the promulgation of numerous consequential new guideline amendments, though the USSC also defering resolution of other big issues.  Acquitted conduct sentencing (recently flagged here) is one of the big topics that was deferred for future amendment cycles.  But there were an array of other critical issues tackled through a total of eleven intricate guideline amendments

Notably, the new bipartisan fully loaded Commission voted unanimously in favor of ten of the eleven intricate guideline amendments that were promulgated today.  But arguably the most consequential of the amendments to the federal sentencing guidelines — namely the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)" — divided the new Commissioners.  Specifically, the four Democratic appointees to the Commission voted to promulgate an amendment that provides federal judges with relatively broad authority to reduce sentences pursuant to 3582(c)(1)(A), whereas the three Republican appointees to the Commission voted againt this amendment.  

As federal sentencing gurus know, none of these amendments will formally become guidelines law until November 1, 2023.  And, until that time, Congress has authority to enact legislation to reject any or all of these amendments in order to prevent them from becoming law.  The ten amendments that received unanimous support from all the new Commissioners seem highly unlikley to be subject to override by Congress.  But given the divided vote over the commpassionate release guideline, as well as all the important issues that this guideline touches upon, I am  quite uncertain about whether Congress might seriously seek to weigh in on this topic in the coming months.  (I am nearly certain that some notable members of Congress will express some criticism of the proposed amendment and that some notable members of Congress will express support for the proposed amendment.)

I plan to do some separate posts on some of the individual amendnments (and on some of the non-amendments and some of the speeches by various members of the Commission) in coming days and weeks.  But before concluding this post, I think it worth flagging the reality that, even though none of these amendments can become formal law until November 1, 2023, federal judges certainly can — and I generally think should — consider the wisdom reflected in these new proposed guidelines right away.  Whether the topic is compassionate release or firearms  or criminal history or fake pills or other matters addressed by these amendments, federal judges currently have lots of discretion to consider an array of factors at sentencing and the grave responsibility of trying to exercise their sentencing discretion wisely.  The Commission is the expert sentencing policy-making body in the federal system, and its proposals sensibly merit at least thoughtful consideration by sentencing judges even before they become law.

UPDATE The US Sentencing Commission now have this official press release on its webstite with this extended heading: "'Back In Business' U.S. Sentencing Commission Acts To Make Communities Safer & Stronger: New Policies Increase First Steps Toward Second Chances, Take Targeted Action On Gun Trafficking And Fentanyl, And Expand Alternatives To Incarceration." Here is most of the text of the press release:

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted today to promulgate amendments to the federal sentencing guidelines. “The Sentencing Commission is back in business,” said Chair Carlton W. Reeves. “Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” Watch public meeting. 

During the pandemic, federal judges saved lives using their authority in 18 U.S.C. § 3582(c)(1)(A) to reduce sentences for incarcerated people facing “extraordinary and compelling” circumstances like certain risks posed by COVID-19.  Responding to the First Step Act’s directive to increase the use and transparency of this tool, the Commission updated its guidelines to reflect lessons learned since the pandemic, ensure judges can continue to take first steps toward second chances for those who deserve them, and reunite families through appropriate reentry.  “Judges are in the best position to decide if someone deserves to have the length of their sentence revisited,” said Chair Reeves. “This policy trusts courts to continue doing what is right.”

Since the Commission last had a quorum, communities across the country have struggled with the ills of gun trafficking and fentanyl.  Congress directed the Commission to act on gun trafficking through the Bipartisan Safer Communities Act of 2022, while the Drug Enforcement Administration asked the Commission to evaluate possible action on fentanyl.  In response, the Commission voted to take targeted action on both issues. “The problems of gun trafficking and drug overdoses demand a comprehensive response,” said Vice Chair Claire Murray. “I am proud to say the Commission is doing its part by ensuring we have proportional sentences for serious offenses.”

The Commission is also revising guidance to courts regarding people facing their first federal conviction.  Relying on data and extensive analysis about recidivism, the Commission is acting to maximize public safety and encourage consideration of alternatives to incarceration.  “Our new policies revise the sentencing guidelines based on empirical research and experience,” said Vice Chair Laura Mate.  “This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Among the many other policies issued by the Commission are those that seek to address ghost guns, sexual abuse of incarcerated people by correctional employees, clarify acceptance of responsibility points for defendants, and implement criminal justice legislation passed by Congress.  “The policies issued today reflect the wide spectrum of views we received through public hearing testimony and tens of thousands of letters,” said Chair Reeves. “The policies issued today prove, beyond a doubt, that when you speak to the Commission, you will be heard.”

While the newly reconstituted Commission concludes its first policymaking cycle, there is more work to do. In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023. 

April 5, 2023 at 04:07 PM | Permalink



I know you will cover it in the future, but the new compassionate release guideline is a massive change.

It's also pretty darn ambiguous (can cut both ways). "Unusually long sentence"? Not going to define it.

Catch-all provision to give courts lots of leeway on items of similar "gravity"? Check.

Honestly, this will be a massive litigation fight for post-conviction attorneys and the DOJ for at least the next 2-3 years if this guideline stays in place.

Truly cannot believe it passed.

Posted by: Zachary Newland | Apr 5, 2023 6:54:21 PM

A lot of great work by the Commission. However, it's truly sad that it could not come to some agreement with regard to the sweep of the "controlled substance offense" definition. I don't anticipate the facts or rationale on the issue changing much if at all, let alone the split shifting or dissolving, and the failure to act will likely result in thousands of disparate sentences under the career offender designation and other guidelines.

Posted by: Prof. Adam Stevenson | Apr 5, 2023 7:57:44 PM

I found it hard to give weight to the statement by one of the nay voters on the 1B1.13 amendments when it was said that approving and promulgating that amendment would have a chilling effect on future bipartisan legislation. I think that I said into my computer screen "the EQUAL Act [which had at least 10 R cosponsors and still couldn't get through] would like to have a word."

Posted by: Jeremy Gordon | Apr 7, 2023 3:40:03 PM

An excellent point, Jeremy, to which I would add that one of the whole points of creating a sentencing commission was to provide some insulation from the concerns of politics of Congress so that the focus should be on good sentencing policy-making. To suggest the USSC should not advance good policy because doing so might impact congressional politics seems a bit strange.

Posted by: Doug B | Apr 7, 2023 4:04:27 PM

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