US Sentencing Commission now officially without two of its seven voting members

With help from a colleague, I can report on significant news relating to the US Sentencing Commission that goes along with the new Congress.  As reported in this post, back in August 4, 2022, the Senate confirmed Prez Biden’s seven nominees to the US Sentencing Commission, fully reconstituting the Commission after many years of being down some members and after 3+ years without a quorum.  Since August 2022, the Commission has been fully loaded as well as quite active.  The seven commissioners were confirmed for staggered terms, with two of those terms — for former Judge John Gleeson and current Judge Claria Horn Boom — expiring October 31, 2023.  President Biden renominated both Judges Gleeson and Boom, and both nominations were reported favorably out of the Senate Judiciary Committee back in April 2024.  Judge Glesson’s nomination was reported by a bare majority, and Judge Boom’s nomination was reported unanimously. 
 
Both Judge Gleeson and Judge Boom were able to continue to serve after the expiration of their terms, pursuant to 28 U.S.C. § 992. That law authorized their continued service until "the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member’s term expired.”  But on Friday, January 3, 2025 at noon, Congress adjourned the second session of the 118th Congress sine die, the nominations of Judges Gleeson and Boom were returned to the White House, and, pursuant to section 992, the terms of these two Commissioners ended.  This development leaves the Commission now with only five voting members, three Democrats and two Republicans.  Pursuant to 28 U.S.C. § 994, it will require four of these five — a supermajority — to vote for any proposed amendments to the Sentencing Guidelines for those proposed amendments to be promulgated and sent to Congress.

The reduction in the number of active members on the Commission raise lots of questions, including whether President Trump will make nominations to the Commission to fill the two vacancies anytime soon, whether the Commission will move forward with additional proposed amendments to the drug guidelines and others as hinted at at their December public meeting (when they already published notable proposed amendments), whether and how the need for a supermajority of commissioners to amend the Guidelines and for other actions will impact the Commission’s agenda and plans, how Chair Reeves will guide this new Commission configuration to work with the new Administration and the new leadership of the 119th Congress and its two judiciary committees, and many more.  (Speaking of the new Administration, I am tempted to joke that whoever is gearing up DOGE might consider taking  premaure credit for the downsizing of Commission.  Jokes aside, the Commission always seemed more productive and effective when fully staffed.)

In the next few months, some of these questions will begin to be answered, and Commission membership dynamics are sure to impact federal sentencing law and policy in this new year and beyond.  Stay tuned.