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www. NYLJ.com
Wednesday, January 18, 2017
Volume 257—NO. 11
Expert Analysis
Outside Counsel
Criminal Justice Reform at a Crossroads:
U.S. Sentencing Commission Weighs In
W
hat 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.
Eric Tirschwell is co-chair of the white-collar
defense and investigations group at Kramer, Levin,
Naftalis & Frankel. A former federal prosecutor, he
served for seven years as a member of the U.S. Sentencing Commission’s Practitioner’s Advisory Group,
most recently as chair.
By
Eric
Tirschwell
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
While the Commission’s power is
limited, it is far from powerless.
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
Wednesday, January 18, 2017
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
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.
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
Wednesday, January 18, 2017
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.
Reprinted with permission from the January 18, 2017 edition of the NEW YORK
LAW JOURNAL © 2017 ALM Media Properties, LLC. All rights reserved. Further
duplication without permission is prohibited. For information, contact 877-257-3382
or [email protected]. # 070-01-17-20