Revived commission could spark criminal justice changes

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 any of 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 on Friday 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 that “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.”