Two new papers examining administrative law issues around USSC’s new sentence reduction guideline
Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission’s recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:
“Will Federal Compassionate Release Survive the Death of Chevron?“
This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron. By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference. On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement. Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.
This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine. After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska. Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority. It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.