The Evolving Role of the United States Sentencing Commission

Abstract

This essay explores the way in which the United States Sentencing Commission’s policymaking role has changed over time. The agency has gone through three different phases in terms of its role (either actual or perceived) in federal sentencing. First was the role envisioned for the Commission at its inception, which was an expert agency that would be politically insulated. This role essentially saw the Commission as an independent policymaker. While this vision of the Commission never materialized, it is important to understand this conception of the Commission to appreciate why it was set up the way it was. The second and dominant phase, which lasted roughly two decades, from 1986 until 2007, is where the Commission played a weak supporting role to the political actors who oversaw its work, with Congress largely controlling its output. This was a period characterized by politically battering by Congress. Given the political climate of the time, that meant increases in sentences but little else from the Commission. The third phase is from 2007 until today. The Commission’s role now is as a respected supplier of data and it is given more deference in its judgments. In a sense, this role combines the first two. The Commission is recognized for its expertise, but that expertise is only valuable insofar as the information it generates has political value. In a time where there is bipartisan support for rolling back some of the excesses in sentencing, that information has value where it did not before. But the Commission is still on a relatively short leash in terms of how much it can accomplish. If we want to make the most of this current role, I think there are some things we can do to improve it, and this essay offers some suggestions.