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Zip Code Decides Prison Time With Sentencing Panel Paralyzed (1)

Jan. 20, 2022, 11:01 AMUpdated: Jan. 20, 2022, 3:38 PM

Welcome back to Opening Argument, a column where I dive into issues dividing appeals courts and unpack complicated legal fights. On tap today? A look at the U.S. Sentencing Commission and how its inability to function is putting some people behind bars for longer based on where they live.

Thomas Guerrant got 10 years in jail for selling heroin because he had a prior marijuana possession charge in Virginia, but he would have likely gotten a lighter sentence if he lived in New York.

That’s because regional federal appeals courts disagree on what drugs are considered “controlled substances,” which can trigger a career offender status that carries a longer prison term under the federal sentencing guidelines.

The U.S. Sentencing Commission is supposed to resolve these kinds of disputes, but it’s paralyzed right now because it isn’t staffed. Former President Donald Trump’s nominees were never confirmed by the Senate and President Joe Biden has yet to put up any names to fill the empty seats.

Leaving circuit splits unresolved like this means people have to sit in prison longer than others who commit similar crimes based on where they live.

Aamra Ahmad, a senior policy counsel at the American Civil Liberties Union and former federal public defender, said the Supreme Court can intervene and “interpret the law and decide circuit splits even if the commission does not have a quorum and has not spoken on a particular issue.”

But in many cases, like Guerrant’s, they refuse.

In a statement after the court turned down Guerrant’s case last week, Justices Sonia Sotomayor and Amy Coney Barrett said it is the responsibility of the sentencing commission to address these types of divisions to ensure fair and uniform application of the guidelines.

“At this point, the Sentencing Commission has not had a quorum for three full years,” they wrote. “As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences.”

Right now six out of seven seats on the U.S. Sentencing Commission are vacant and its lone voting member Judge Charles Breyer can only stay on for an additional year after his term expired in October. The commission needs at least four people for a quorum.

Biden has yet to nominate a single new member in his first year, which is raising questions about the perceived value of the sentencing commission and if anyone other than advocates think it’s worth reviving.

The question lurking behind this entire issue is whether we still need a commission at all, said Nora Demleitner, president of St. John’s College Annapolis, Md., campus and former dean of Washington and Lee University’s School of Law.

“In a way, what Congress and the president seem to be saying is ‘No,’” she said. “It’s not like there are 50 senators on both sides of the aisle going to the president and saying, ‘You need to fill the sentencing commission.’ It doesn’t seem to be an urgency.”

And that’s been OK for some criminal justice reformers who have long seen the sentencing commission as too eager to put people behind bars.

“There are lots of advocates on sort of both sides of the aisle who were pretty darn comfortable with not having the commission doing anything in terms of changing the sentencing rules,” said Douglas Berman, a professor at Ohio State University Moritz College of Law.

“That’s particularly true for more progressive criminal justice reformers who, I think, as a group tend to view the commission as pro-prosecution, pro-toughness.”

Another part of the problem is it’s hard to come up with a slate of nominees that is palatable to both Democrats and Republicans. However, there was least one name that appeared on Trump’s list of candidates and on a list of names drawn up for Biden’s consideration—Third Circuit Court Judge Luis Felipe Restrepo.

No more than four members of the commission can be from the same political party, and at least three must be federal judges. The White House didn’t respond to questions about when or if it plans to fill the current vacancies.

There are criminal justice reform advocates who want to see the sentencing guidelines completely overhauled. They were hoping Biden would be the one to revive the commission so it could begin that work, which will likely require Congress to change the enabling statute. Resolving circuit splits over language in the guidelines is only one small thing the commission is supposed to do.

A main function of the commission is to update the guidelines when Congress passes criminal justice reforms, analyze how the federal sentencing system is functioning, and make recommendations for change. Right now it’s largely unavailable to do that policy work either, Berman said.

In a statement, Breyer, the acting commission chair, said it’s critical the White House nominate and the Senate confirm enough commissioners to allow the panel to resume its important statutory function of updating the guidelines to address new policies, circuit conflicts, and changes in law.

“It is particularly frustrating that the Commission has been unable to implement significant changes made by the First Step Act of 2018, including changes to the procedures by which an offender can seek compassionate release,” he said.

The Supreme Court in a 2005 decision made the guidelines advisory, but judges still rely on them. That’s why Frank O. Bowman III, a professor at the University of Missouri School of Law, said the guidelines shouldn’t just be left in limbo.

If we’re going to let this non-law law chug along in its halting, ineffectual way, which is nonetheless going to affect the lives of thousands of people every year, it behooves us to have somebody paying attention to fix the small things, the inconsistencies and regional disparities, and make some incremental improvements, he said.

(Updated to include a statement from the acting chair of the sentencing commission in the 21st paragraph. A prior version of this story was corrected.)

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editor responsible for this story: Andrew Childers at; Jo-el J. Meyer at

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