US Sentencing Commission releases fascinating “possible policy priorities that the Commission expects to focus on” in next amendment cycle
The US Sentencing Commission has today provided federal sentencing fans a lot to thinking about right before this coming long weekend. Specifically, through this new Federal Register Notice, the Commission “provides this notice identifying the possible policy priorities that the Commission expects to focus on during the amendment cycle ending May 1, 2024.” The preamble and the particulars are fascinating, and here are just some of what I consider high points:
While continuing to address legislation or other matters requiring more immediate action, the Commission has decided to limit its consideration of specific guidelines amendments for this amendment cycle. Instead, in light of the 40th anniversary of the Sentencing Reform Act, the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the Sentencing Reform Act. See 28 U.S.C. 991(b)(2). The Commission expects to continue work on many of these priorities beyond the upcoming amendment cycle. The Commission invites comment on the proposed priorities set forth below, along with any additional priorities commenters believe the Commission should consider in the upcoming amendment cycle and beyond….
The proposed priorities for the amendment cycle ending May 1, 2024, are as follows:
(1) Assessing the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. 3553(a)(2) and considering any appropriate responses including possible consideration of recommendations or amendments.
(2) Promotion of court-sponsored diversion and alternatives-to-incarceration programs by expanding the availability of information and organic documents pertaining to existing programs (e.g., Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program) through the Commission’s website and possible workshops and seminars sharing best practices for developing, implementing, and assessing such programs.
(3) Examination of the Guidelines Manual, including exploration of ways to simplify the guidelines and possible consideration of amendments that might be appropriate.
(4) Continuation of its multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary….
(10) Further examination of federal sentencing practices on a variety of issues, possibly including: (A) the prevalence and nature of drug trafficking offenses involving methamphetamine; (B) drug trafficking offenses resulting in death or serious bodily injury; (C) comparison of sentences imposed in cases disposed of through trial versus plea; (D) continuation of the Commission’s studies regarding recidivism; and (E) other areas of federal sentencing in need of additional research.
(11) Additional issues identified during the comment period.
The notice specifies that “comment should be received by the Commission on or before August 1, 2023. The Commission is again allowing both mail and electronic submission of comments.
I am a bit surprised to not see acquitted conduct enhancements as one of the possible priorities, though arguably an examination of differences between “sentences imposed in cases disposed of through trial versus plea” would necessarily include aspects of acquitted conduct sentencing. More generally, I read this overall notice as an indication that the Commission is prepared to take a broad look at a lot of broad issues, and so I suspect very few matters are outside of the USSC’s vision for the coming guideline reform cycle.
Exciting times!