United States: Criminal Justice Reform At A Crossroads: U.S. Sentencing Commission Weighs In

What a difference six months makes. Earlier this year, it was widely reported that Congress was closer than ever to passing significant federal criminal sentencing reform on a wide bipartisan basis. Now, following the election of Donald Trump and the nomination of a vocal opponent of these reforms—Sen. Jeff Sessions— as Attorney General, optimism among proponents of criminal justice reform has been dramatically diminished, if not extinguished altogether. While some hold out the hope that conservative supporters of such reform (such as House Speaker Paul Ryan and maybe even Vice President-elect Mike Pence) may be able to bring a Trump administration around, most agree that at best criminal justice reform will be a low priority in the Executive Branch come January 20—even as overall national crime rates remain near historic lows.

Enter the U.S. Sentencing Commission. The creation of the Commission 30 years ago was itself seen as an act of dramatic reform of a system that was decried by Marvin Frankel, in his seminal work "Criminal Sentences— Law Without Order," as "a wild array of sentencing judgments without any semblance of consistency demanded by the ideal of equal justice." Since that time, the locus of power driving sentencing policy and severity has swung back and forth between Congress and the Commission (not to mention the Judiciary). We have seen over three decades that episodic bursts of more active involvement by the legislative branch too often have led to disproportionality and unfairness when it comes to criminal punishment. The overuse of mandatory minimum sentences and the overly severe punishment of crack cocaine-related offenses are now widely recognized as two examples of such excesses. They also exemplify the ways in which the politics of crime and punishment can lead to unwarranted disparities, including along racial lines. And while the federal system accounts for only about 10 percent of all who are imprisoned in this country, the overall U.S. incarceration numbers in the wake of these and other "tough on crime" policies are familiar but still jarring: over two million people in American prisons and jails, a disproportionate number of whom are young men of color, and representing close to onequarter of the imprisoned population of the entire world (even though we have less than 5 percent of the world's overall population). It is also estimated that well over 60 million Americans have criminal records and something like six million Americans are unable to vote due to state felony disenfranchisement statutes.

One of the virtues of a sentencing commission—an expert agency that follows a fact-based, deliberative process—should be that it is less subject to the shifting dynamics of the political branches, and more likely to dispassionately arrive at a rational and even-handed sentencing scheme. The Sentencing Commission of course cannot eliminate federal mandatory minimum sentences or directly reduce the length of such sentences. Congress enacted those laws—aiming them at drug kingpins, not the street-level dealers to whom they too often have been applied—and Congress must change them (as the Commission has urged it to do). Nor can the Commission expand the availability of the "safety valve" that can spare low-level, nonviolent federal offenders with zero or minimal criminal history from the harshness of five, 10 or 20-year mandatory minimum prison terms; that too must come from Congress (and the Commission has recommended this change as well).

But while the Commission's power is limited, it is far from powerless. And while Commission-driven change is incremental and too slow for many, the latest proposed amendments to the U.S. Sentencing Guidelines— published on Dec. 9, 2016—show that, within the sphere of sentencing policy that it does control, the Commission continues to try to move the needle in the direction of a fairer and more reasonable sentencing system.

The first and perhaps most significant proposal, entitled "First Offenders/Alternatives to Incarceration," would permit and encourage a greater number of non-incarceratory sentences for the least culpable, non-recidivist federal offenders. This makes good sense, as it was Congress itself that directed the Commission, in 28 U.S.C. §994(j), to "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense." The Commission's analysis shows that notwithstanding this directive, over the last decade courts trying to carry out the policies of the Guidelines have been imposing alternative sentences (including non-incarceratory sentences) with decreasing frequency. The proposed amendment is aimed at reversing that trend, and it comes in two parts. First, the Commission proposes to create a new guideline to "provide lower guideline ranges for 'first offenders' generally and increase the availability of alternatives to incarceration for such offenders at the lower level of the Sentencing Table." The second part would revise the Sentencing Table, consolidating Zones B and C, thereby expanding the number of defendants eligible for a probationary sentence.

The proposal appears to be based in significant part on empirical data showing that "first offenders" "generally pose the lowest risk of recidivism." Who qualifies as a "first offender" (e.g., What if a defendant has a misdemeanor that otherwise does not count in computing their criminal history?) and the extent of the reduction for those who do (whether it should be reduced one or two levels) are some of the issues on which the Commission is seeking public comment. However these details are resolved, if implemented the proposed amendment would for the first time advise sentencing courts that where the offense did not involve violence and a firsttime offender's guideline range is not above a certain level, "the court ordinarily should impose a sentence other than a sentence of imprisonment." In other words, the Commission is proposing to create a new category of non-recidivist, less serious, non-violent offenders for whom there would be a "rebuttable presumption" of no jail time.

Interestingly, the Commission also seeks comment on whether certain categories of non-violent offenses should be excluded from this "presumption," and provides as examples "public corruption, tax, and other white-collar offenses." This likely ties back to when the Guidelines were first promulgated, and the original Commission expressed the view that "courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud and embezzlement." The Commission's solution at the time was to "write Guidelines that classify as serious many offenses for which probation was frequently given and provide for at least a short period of imprisonment in such cases." (U.S.S.G., Ch. 1, intro., pt. 4(d) (1987)). The notion was that "the definite prospect of prison" in such white-collar cases, "even though the term may be short, will serve as a significant deterrent." Whether the Commission will be prepared to walk back from that foundational principle with respect to first-time, less serious white-collar or economic offenders will be interesting to see (for more serious offenders, where the amount of loss is large and/or the corresponding offense level is high, the proposed first-time offender provision would not apply). The debate around whether to carve out white-collar offenses from any firsttime offender guideline may also be informed by the Commission's finding in its 2015 Alternative Sentencing report that white offenders received alternative sentences at higher rates than African-American and Hispanic offenders.

Coincidentally, on the very same day the Commission published this proposed amendment, NYU's Brennan Center for Justice released an important and detailed report entitled "How Many Americans are Unnecessarily Incarcerated?" The report's authors explain their goal as providing bold and concrete ideas for reducing the U.S. prison population without endangering public safety. The first recommendation, which both parallels and goes further than the Sentencing Commission's "first offender" proposal, is that state legislatures and Congress (not sentencing commissions) "should change sentencing laws to mandate" (not just allow or recommend) "alternatives to prison as the default sentences for certain lower-level crimes." Some might say this proposal would give the term "mandatory minimum" a whole new meaning! It is based in part on research showing that some defendants—especially lower-level offenders—may not be any more likely (and may even be less likely) to re-offend if they receive a nonincarceratory sentence compared to being sent to prison. According to the Brennan Center, the categories of lower-level criminals for which they are proposing mandatory nonprison alternatives could reach as many as 25 percent of the imprisoned population (or over 350,000 current inmates). While the mechanics are quite different, taken together the Sentencing Commission and Brennan Center proposals may signal an emerging consensus on a better way to handle less dangerous offenders without sacrificing public safety.

One other reform-minded amendment proposed by the Sentencing Commission would exclude juvenile sentences—for offenses committed prior to age 18—from the calculation of the defendant's criminal history score. According to Sentencing Commission Chair Patti Saris, this proposal emanates in part from "the growing adolescent brain development research and recent court decisions," no doubt a reference to recent Supreme Court rulings finding it unconstitutional in virtually all cases to sentence juveniles to life in prison without the prospect of parole.

To be clear, none of the Sentencing Commission's proposals represent monumental changes to the federal sentencing regime, and the number of defendants who actually would be impacted by the "first offender" proposal remains to be seen. A larger overhaul of the guidelines—for example, to reduce the over-emphasis on things like drug quantity and amount of loss, and increase the emphasis on motivations, personal gain, level of participation, and victim harm—appears to remain a long way off. But there is reason to be a little bit hopeful, as these most recent proposed amendments continue a trend of meaningful steps by the Commission toward a more balanced and fair sentencing process and to address the almost uniformly-acknowledged problem of over-incarceration. Indeed, as Judge Saris highlighted in her remarks, Commission-driven changes in the guidelines over the past several years have contributed to a decrease in the federal prison population from a peak of 219,298 in 2013 to a current level of 190,303, representing 28,995 fewer prisoners and a reduction of 13%.

The publication of the proposed 2017 Amendments also marks a changing of the guard at the Commission. Two commissioners, including Chair Saris, will soon be replaced. And while the process of appointing sentencing commissioners calls for political balance, the future of the Sentencing Commission—and the pace of progress toward a more measured and rational sentencing regime—are very much up for grabs. In the meantime, and for the foreseeable future, more significant and wider-impacting criminal justice reform is likely to be centered at the state and local levels, not in Congress or at the Sentencing Commission. Stay tuned.

Previously published New York Law Journal, Jan. 18, 2017.

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