WASHINGTON — Congress used a sweeping criminal justice overhaul law in 2018 to allow federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons — and the COVID-19 pandemic prompted an unprecedented flood of thousands to try that over the past year.
But federal judges did not have the guidance that typically would ensure a new law is applied as evenly as possible nationwide, from courtroom to courtroom. The judicial agency that sets such policies hasn’t had enough members to function for years.
“What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.
That could soon change. The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.
President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.
Advocates say sentencing is a crucial area to overhaul. A bipartisan group of senators has reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it.
Sakira Cook of the Leadership Conference on Civil and Human Rights said a renewed sentencing commission could build on work during the Obama administration that helped lead to a reduction in the prison population. Cook pointed to a commission report from that era that showed members of Congress how Black and Latino people are incarcerated and charged at higher rates related to mandatory minimums than their white counterparts.
The Leadership Conference has urged the Biden administration to nominate sentencing commission members who “reflect the diversity of thought, and experience, and expertise that we think is critical to ensuring that work moves us in the direction of transformation, moves us toward refining and leaning into best practices of the day,” Cook said, “and not harkening back to old tropes around violence and criminality and things that have been used to thwart progress on ending mass incarceration.”
The commission must include two additional federal judges, and no more than four members can be from the same political party. The Senate must approve the members.
The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of President Donald Trump’s presidency. Breyer is the brother of Justice Stephen G. Breyer, and his term on the commission expires in October.
Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches. But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.
Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.
The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.
Grassley said recently that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”
Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.”
But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”
Durbin and Grassley have proposed smaller changes to the sentencing, while New Jersey Democratic Sen. Cory Booker has introduced a broader bill called the Next Step Act. The room for bipartisan agreement on such bills is unclear.
“I wonder if this is a moment when everybody wants to sort of step back and think about, do we need sentences that are this high?” Mary Price, the general counsel of Families Against Mandatory Minimums, said. “Do we need 43 levels, do we need all these enhancements?”
It took Congress years of negotiations to put together a compromise criminal justice overhaul bill that Trump signed in 2018. Among other provisions, it gave judges more freedom to hand down sentences below the mandatory minimum for nonviolent drug offenders, reduced mandatory minimums associated with the three-strikes law.
The law also eliminated a provision that prosecutors used to “stack” firearm charges for long sentences for first-time offenders. And it makes retroactive a 2010 law that reduced the sentencing disparity between crack and powder cocaine.
The law also allowed prisoners to directly ask for so-called compassionate release, the issue that prompted federal courts to debate what the guidelines required judges to do when it came to COVID-19.
When the U.S. Court of Appeals for the 4th Circuit reviewed the situation, it ruled in December that the only guidance from the sentencing commission came from before the First Step Act was passed. Where the commission does not act, the appeals court ruled, “then courts make their own independent determinations” of what constitutes an extraordinary and compelling reason to release a prisoner.
There’s no clear timeline for when the White House might announce nominees for the commission or when the Senate might move them through the confirmation process.