Bloomberg Law
June 28, 2021, 8:46 AM

Near-Vacant Sentencing Panel Gives Biden Chance for Fresh Start

Madison Alder
Madison Alder

Six of seven possible seats on the U.S. Sentencing Commission remain empty, giving President Joe Biden an opportunity to remake the panel at a time when overhauling criminal justice is a rare example of bipartisan consensus.

The commission has only one member now and hasn’t had the quorum required to make new guidance since January 2019. That’s led to courts relying on outdated guidance in areas like compassionate release requests, which have been filed at unprecedented levels during the pandemic.

In addition to taking up issues that have been unaddressed, a new set of commissioners could help review the decades-old sentencing guidelines wholesale to reflect a modern understanding of criminal justice, observers say.

“It is a great opportunity for the administration,” said Mark Osler, a law professor at the University of St. Thomas in St. Paul, Minnesota, who focuses on policy surrounding clemency, sentencing, and narcotics. “Because if you want a great shot at really creating reform in the federal system, the guideline commission is one place to start.”

And the bipartisan consensus on the need to overhaul sentencing gives a new commission “a chance to do things like simplify the guidelines,” Osler said.

Judge Picks

By statute, the commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party. While guidance is advisory, it creates a framework for federal judges when deciding how to sentence.

Biden has yet to name his picks, but recommendations are being sent his way. In April, the Judicial Conference, the policymaking arm of the judiciary, sent the White House six names for additional judges for the commission, a spokesman for the Administrative Office of the U.S. Courts said.

That list includes the Third Circuit’s Luis Felipe Restrepo, a Barack Obama appointee, who was one of Donald Trump’s nominees for a Democratic seat on the commission.

The conference recommended two other Democratic-appointees: Denise Jefferson Casper, of the District of Massachusetts, and Abdul Kallon, of the Northern District of Alabama. The Republican recommendations were Carol Bagley Amon, of the Eastern District of New York, Federico Moreno, of the Southern District of Florida, and Michael Seabright, of the District of Hawaii.

The White House didn’t respond to a request for comment on where the nominations stand.

‘A Bit Lonely’

As the acting chair of the Sentencing Commission, Senior U.S. District Judge Charles Breyer has been “a bit lonely” as the only member since January.

Alone, he’s effectively powerless since the commission needs at least four voting members for a quorum. While Trump nominated people to the commission, the Senate didn’t take them up.

“It’s frustrating that something like an independent agency is unable to act, and that is of concern,” said Breyer, who is the brother of Supreme Court Justice Stephen Breyer.

The system functions “reasonably well without a commission,” partly because the guidance is only advisory, said Douglas Berman, a professor at Ohio State University’s Moritz School of Law who focuses on sentencing. Some constituencies, including the defense bar, may have even welcomed not having new guidance over the past several years, he said.

“For the longest time, I was happy there was no commission to act and make things worse,” given its traditional punitive approach to sentencing, said Shon Hopwood, a Georgetown University law professor who spent 11 years in prison for bank robbery.

Compassionate Release

But the absence of the ability to create new guidance has drawbacks.

The loss of a quorum came shortly after Congress passed the First Step Act in December 2018, a sweeping bipartisan criminal justice law that necessitated new guidance from the panel.

Compassionate release is one area where the lack of a quorum has been acutely felt following changes made under the new law. That’s when people can be released early from prison for “extraordinary and compelling” reasons consistent with the Sentencing Commission guidance.

Before the passage of the law, compassionate release requests made it into court only after the Bureau of Prisons agreed they should be granted. But the new law created a route for those requests to get to court if the BOP denies them or doesn’t respond in 30 days. The commission’s inability to update guidance has left courts to interpret the new law on their own amid an influx of requests for compassionate releases during the pandemic.

That led to conflicting decisions among the circuit courts. Of the nine circuits to rule on the issue of whether the outdated guidance is still applicable, only the Atlanta-based Eleventh Circuit came to the conclusion that it is. Hopwood, who litigated that case, filed an appeal to the U.S. Supreme Court on June 10.

Breyer said compassionate release guidance will likely be among the first priorities a new panel will address.

Reexamining Guidance

But there is also interest in having a new commission take a look at sentencing guidelines more broadly, including from Biden.

“After seeing the system run, in a sense, without anybody in control for a number of years, that’s a great time to come in with new blood, new attitudes, and new perspectives and do a top-to-bottom review of everything,” Berman said.

During the 2020 presidential race, Biden’s campaign recommended tasking the Sentencing Commission with “conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges.”

The guidelines were drafted 40 years ago at a time when the emphasis was on punishment rather than rehabilitation, said Nancy Gertner, a former federal district judge in Massachusetts and a senior lecturer at Harvard who teaches law and neuroscience and has written about sentencing.

Since then, the connection between the guidelines and mass incarceration is clearer and people have a better understanding of the science behind the issues that impact crime, such as mental health, she said.

“In my view, these are guidelines that need to be reexamined and reevaluated,” Gertner said.

Still, the commission can’t completely overhaul guidance without Congress changing the statute to allow for it, said Mary Price, general counsel at Families Against Mandatory Minimums, known as FAMM.

“I do think it’s time for another look,” but that’s essentially a Congressional call, Price said. “I don’t know that this Congress or the next Congress is going to have an appetite for that.”

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at