An inactive sentencing commission: A cause for outrage

Unfortunately, there is so much turmoil in the world that it’s hard to keep up with all the bad news.

On March 16, 2022, the Wall Street Journal published an article that should have drawn immediate national attention and rebuke. It was entitled, “Once Home to Ketanji Brown Jackson, Sentencing Commission Now Sits Quiet as Issues Go Unresolved.”

Brown Jackson’s confirmation proceedings referenced that from 2003-2005, she worked at the commission where she analyzed sentencing policies and drafted legislative proposals for amending federal sentencing guidelines. She returned to it from 2010-2014 as a commissioner. The commission is currently dormant because it doesn’t have a seven-member body to conduct business. This should spark outrage, but because most of the public isn’t aware of the ramifications of this, it’s going unchecked.

There are 2 types of criminal offenses – state and federal. They are prosecuted in different courthouses and have different types of rules of procedure, statutes, and legal professionals. State court crimes are prosecuted by county and state prosecutors while federal crimes are prosecuted by Assistant United States Attorneys. Both have respective public defender offices – separate for state and federal. State court judges are elected or appointed and must run on election cycles to keep their seat. Federal judges are appointed to the bench for life and are not subject to recall elections. State crimes are usually offenses that occur in the state i.e., petty theft, DUI, domestic violence, etc., while federal offenses are ones that are committed across states i.e., wire fraud, drug trafficking. The most notable differences between them are sentencing.

In state court, most cases resolve by way of agreement between the prosecutor and defense attorney. The judge rubber stamps the deal, so long as it is within the bounds of reason.

In federal court, the prosecutor and defense agree to an initial sentencing range, and the defendant is at the mercy of the judge to go below the agreed upon sentencing range, perhaps even ignore it altogether. This is because the United States Sentencing Guidelines are extremely punitive.

The Guidelines were created in 1984 and are the product of the United States Sentencing Commission. The goal of the Guidelines was to alleviate sentencing disparities, but the irony is that they are achieving the opposite result.

The way the Guidelines work is every crime assigned a certain number of points, also known as the base offense level. More points are added if enhancements are warranted i.e,. use of a weapon, being a leader or manager, amounts of drugs involved, etc. The total point value is then plotted on a table, under the defendant’s criminal history category. The longer the record, the more to the right along the chart they move, and a recommended prison sentencing range is arrived at.

Here is some data from the 2021 U.S. Sentencing Commission’s Annual Report and Sourcebook of Federal Sentencing Statistics:

- The average length of imprisonment in methamphetamine cases was 90 months, a decrease of five months from fiscal year 2020 at 95 months. However, the average sentence imposed varied across the other major drug types: in crack cocaine cases (69 months), powder cocaine cases (68 months), fentanyl cases (60 months), heroin cases (60 months), and marijuana cases (30 months).

- In fiscal year 2021, 67.7 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty, compared to 66.9 percent of drug offenders in fiscal year 2020. [Mandatory minimum penalties are usually 5, 10, or more years].

- In fiscal year 2021, 69.0 percent of all offenders received sentences under the Guidelines Manual, in that the sentence was within the applicable guidelines range or was outside the applicable guidelines range and the court cited a departure reason from the Guidelines Manual. Less than half (42.8%) of all sentences were within the guidelines range, compared to 50.4 percent in fiscal year 2020.

In the federal system, we are generally not talking days or months, but rather years. In 2005, the Supreme Court stepped in to address the madness in United States vs. Booker and ruled that the Guidelines were no longer mandatory, but advisory. But as can be seen from the report above, a significant chunk of federal sentences are still falling within the guidelines. And I assure you the ones that are not are not off by much. Federal judges have unfettered discretion and do not need to worry about the court of public opinion.

Some work has been done on the legislative side to address these excessive prison terms, such as the First Step Act. But, there is so much more to be done. If people are not sitting around the table going over the data and recommending changes to the legislature, then our prisons will continue to fill to capacity and beyond.

Only President Biden can nominate candidates to the commission and get back up and running. The injustice of the applications of the Guidelines warrants more than a passing article in the Wall Street Journal - it warrants action.