What is the U.S. Sentencing Commission and Who Is the Senate Confirming To It?

The Senate is expected to confirm two nominees to the U.S. Sentencing Commission today — Judge Charles R. Breyer and Judge Danny C. Reeves. Judge Breyer, brother of Supreme Court Justice Stephen Breyer, is a reappointment. He has been an active commissioner since 2013. Judge Reeves was nominated for the Commission by President Barack Obama in 2016, but his nomination did not advance out of the Senate and the nomination expired on January 3, 2017. President Trump withdrew his nomination on February 28, 2017 and resubmitted it on March 1, 2017.

What is the U.S. Sentencing Commission?

The U.S. Sentencing Commission is an independent agency within the judicial branch of the federal government. It was created by the Comprehensive Crime Control Act of 1984 as a response to concerns about inconsistent sentencing judgements in the federal court system. There are seven voting members, appointed by the president to six-year terms and approved by the Senate. Commissioners may be appointed to one additional term upon approval by the Senate. Of the seven voting members, three must be federal judges and no more than four may be of the same political party. The two non-voting members are the Attorney General of the United States (or their designee) and the chair of the United States Parole Commission.

The Sentencing Commission formulates guidelines for sentencing according to crime committed and the defendant’s criminal history. Judges are not obligated to follow the guidelines and can err towards greater or lesser sentences. The Commission collects data on all federal sentencing to determine whether the guidelines are being followed, and periodically updates the guidelines based on existing data and criminal justice research.

As a bipartisan "study commission" the Sentencing Commission is not empowered to change existing law. They can, however, affect policy through their advisory role with Congress. The Commission has been instrumental over the last 30 years in using data to push back against politically driven sentencing measures enacted by Congress, like mandatory minimums and more severe punishment for crack-related offenses, that have been shown to create disproportionality and unfairness in federal sentencing.

More recently the Commission has focused on "alternatives to incarceration" for first time offenders, while also assessing whether individuals convicted of large-scale, white collar crimes, such as fraud and embezzlement, should be subject to the same alternative sentencing considerations. They have also advised that crimes committed prior to the age of 18 be exempted in the calculation of a defendant’s “criminal history score”.

Current members of the Commission are: Judge William H. Pryor, Jr (Acting Chair), Ms. Rachel E. Barkow, Ms. J. Patricia Wilson Smoot (Ex-Officio, Chair U.S. Parole Commission), and Mr. Jonathan J. Wroblewski (Ex-Officio, Designee Representative representing the Attorney General).

Should the Senate confirm President Trump’s nominees to the U.S. Sentencing Commission?

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— Asha Sanaker

(Photo Credit: USCapitol - Thurgood Marshall Federal Judiciary Building / Public Domain)