As Congress recesses until after the November elections, an important task should be at the very top of legislators’ to-do list when they all return: The Senate confirmation of two U.S. Sentencing Commission (USSC) Commissioners.
Without these necessary confirmations, the USSC is stripped of its authority, and as a niche criminal justice agency with a huge impact nationwide on judges, criminal defendants, and public safety, there is nothing political to debate and there is no bureaucratic fat to be trimmed.
The USSC is comprised of a bipartisan slate of seven commissioners, all of whom are nominated by the President and confirmed by the Senate. The agency does a yearly review of guidelines that set how long an offender’s criminal sentence should be. These perennial updates reflect changes to the law and policy, including how judges should sentence drug dealers disguising pills as lethal drugs or limiting what a court can consider when calculating a sentence.
When the USSC doesn’t have enough commissioners, the quorum is lost, and all work stops. Two Commissioners’ terms expire on October 31, 2024. This shouldn’t happen… again. The USSC lost its quorum from 2019 – 2022, which essentially created a void in our nation’s criminal justice system.
Following the historic passage of The First Step Act, the USSC was rudderless without a quorum and couldn’t update the Sentencing Guidelines to match the new law. This meant that judicial circuits were blindly and disparately interpreting The First Step Act, leading to an unequal application of the law.
An inactive USSC prevents the consideration of amendments for 2025, which touch on important issues such as reducing the cost of unnecessary incarceration; promoting public safety; and improving community supervision.
Why is the Senate not re-upping these Commissioner terms? Some say it’s due to highly coveted yet rarely available floor time. Others say its retribution after the USSC voted in 2023 to broaden eligibility for compassionate release, which was widely utilized during the COVID-19 pandemic. Perceived as navigating beyond the bounds of congressional intent, some Senators cautioned the USSC from going outside its lane. Another lawmaker introduced a bill that would have made it harder for the USSC to do its job.
Regardless of the perceived reasons, the Senate has an obligation to do what’s right. Confirming the two pending USSC nominees is a common-sense, practical, nonpartisan responsibility. Congress shouldn’t resort to taking its ball home just because some lawmakers don’t like the game.
Unlike acts of Congress, the Sentencing Guidelines are not binding, and anything the USSC advises is never a mandate for those involved in the criminal justice system. All USSC commissioners are subject to a robust Senate confirmation process. Any senators concerned about a commissioner can – and should – ask pressing questions and vote for the nominees as they choose after they advance out of the Senate Judiciary Committee and onto the Senate floor.
Remember that Congress holds all the cards, and by law, the USSC is required to submit all proposed amendments to Congress. This process triggers a 180-day congressional review period, and if Congress allows the review period to pass without any action, the USSC amendments take effect. Alternatively, Congress may modify or reject proposed amendments.
The U.S. Senate is the greatest deliberative body in the world. Choosing to play politics with two USSC nominees and allowing their terms to lapse is antithetical to the U.S. Senate’s ideals. When Congress returns to D.C. post-election, senators must act on the confirmations of the USSC Commissioner nominees. It is essential to have a full quorum which will ensure consistency, effectiveness, and legitimacy in our criminal justice system, something all Senators can surely agree on.