A Big Agenda and a Big Question for the New Sentencing Commission

Abstract

Recent Senate confirmation of President Biden’s nominees to the U.S. Sentencing Commission transformed a long-hobbled agency into a refreshed expert body with a new opportunity to reexamine federal sentencing law and practice. The new Commission has no shortage of large and small issues to tackle in the months and years ahead, and it faces not only a full and substantive agenda, but also a big operational question as it gets to work on its priorities. The Commission has long stressed consensus in developing guideline amendments and related policy work. But now with a full Commission of seven members when only four Commissioner votes are needed to advance guideline amendments and other formal policy decisions, it is possible that some Commissioners may not see a practical reason for the new Commission to always proceed by consensus and to advance only unanimously supported amendments. A new Commission with a new willingness to move forward with amendments and policy initiatives, even in the absence of consensus, could prove to be a much bolder Commission. But is bolder necessarily better, in terms of substantive work products and the ability to advance and implement proposed reforms? Would a U.S. Sentencing Commission acting without consensus be more politically vulnerable in these divided and divisive times?