Meeting the Demand for Democracy in Sentencing Free

Abstract

In making the federal sentencing guidelines not mandatory but advisory, Booker v. United States made the influence of those guidelines dependent on their perceived legitimacy. This article argues that, given the link between law’s legitimacy and its democratic character, Booker should be read as a demand for democracy in sentencing. This demand echoes the one imbued in the U.S. Sentencing Commission’s statutory charter, which gives the agency unique potential to create administrative governance that is of the people, for the people, and by the people. In detailing past and present efforts to fulfill that potential, this article invites readers to assist the commission in its continuing pursuit of more democratic sentencing policy.

note: The views expressed in this article do not represent those of the U.S. Sentencing Commission.

Near the end of each spring, the U.S. Sentencing Commission publishes a notice of proposed priorities in the Federal Register. Typically, the notice contains the commission’s tentative policy-making agenda for the coming year. In 2024 the commission’s spring notice contained something different (see  appendix): rather than proposing a concrete agenda, the notice asked the public what they believe the commission’s agenda should be—that is, how the agency should keep that word justice in our criminal justice system.

This kind of request is a rare thing in federal government. It is, of course, common for administrative agencies to ask for input on concrete proposals. The Federal Register is filled with notices requesting comment on proposed rules. But one struggles to find Federal Register notices asking for comment on what kinds of rules (or other actions) an agency should work upon or how an agency should go about fulfilling its statutory mission. Indeed, in establishing how regulated entities and other government actors play a critical role in agency agenda setting, legal scholarship has highlighted the “limited role of the broader public” in that process.¹

Given the rarity of an agency like the commission seeking public guidance on how to go about doing its work, one might be tempted to brush such a request off as mere lip service to the idea of regulatory democracy. This temptation might grow stronger with a closer examination of the commission’s notice, which grounds its request in a marking of the fortieth anniversary of the agency’s organic statute, the Sentencing Reform Act of 1984.² As those who lived through the various anniversaries of Brown v. Board are all too aware, government entities can often mark anniversaries of important events with more fanfare than action.³

It is ironic, then, that it is another anniversary—the upcoming twentieth anniversary of United States v. Booker⁴—that makes clear why the commission’s request for input is not only genuine but necessary.

I. United States v. Booker’s Demand for Democracy

If you are a believer in sentencing guidelines, you might see Booker as a tragedy. Transforming the guidelines from mandates to advice seems to inherently weaken them. Unsurprisingly, some believers in the guidelines have sought to undo Booker and return to a world where a guidelines sentence is the only sentence a judge can impose.⁵ There is, however, a different path for those who believe in the importance of judges following recommendations about sentencing from a commission—a path that can lead us to embrace, rather than reject, Booker.

What the post-Booker world has revealed is that advisory guidelines can be just as powerful as mandatory guidelines.⁶ The difference is in how that power comes about. In the pre-Booker world, guidelines drew their influence from the stick of reversal, the threat of an appellate court overturning a sentence for the mere reason that it was outside the guidelines range. In the post-Booker world, guidelines draw their influence from the carrot of persuasion, a judge’s belief that—for one reason or another—the guidelines’ recommendation was fair, just, and correct.

This suggests that proponents of sentencing guidelines in a post-Booker world might gain more from fostering judicial faith in the legitimacy of the guidelines than seeking to mandate that legitimacy through legislative reform. Such a focus would lead, naturally, to the question of how people come to see law as legitimate. To put that question more concretely: What should the commission do to convince judges that its sentencing guidelines are fair, are just, and are worth following?

When it comes to questions of legitimacy and the law, there is no better answer than democracy.⁷ Laws are more likely to be followed when they are made by, of, and for the people they purport to govern. This makes sense: When people participate in lawmaking, they have a better appreciation for all that goes into the resulting law. And when lawmaking incorporates a wide range of views, including especially those views most pertinent to the problem at hand, people understand that the resulting laws will be better than less informed alternatives.⁸ All this is to say, in a post-Booker world, where the strength of federal sentencing guidelines depends on their perceived legitimacy, strong guidelines are those made democratically.

Democracy is often feared, rather than revered, in sentencing. Juries are seen as less rational and are more punitive sentencers than judges. The same perception appears in comparisons of legislators and bureaucrats in sentencing commissions. Indeed, many who pushed for the creation of the U.S. Sentencing Commission explicitly stated their hope that the agency’s work would insulate sentencing policy from the influence of mass politics and elections.⁹

Against this background of skepticism, one might find calls to democratize sentencing policy unusual, if not contrary to the intent of the Sentencing Reform Act, which created the commission. A closer look at the Act and its legislative history, however, confirms that the demand for democracy in sentencing administration long predates Booker. It is a demand woven into the fabric of the commission upon its creation forty years ago.

II. The Sentencing Reform Act’s Demand for Democracy

When we think about mechanisms that make administrative agencies “of the people, by the people, and for the people,” we tend to think about one thing: notice-and-comment rulemaking.¹⁰ As it does when creating most administrative agencies, Congress aimed to infuse democracy into the commission’s work by requiring its policy making to be subject to notice-and-comment requirements of the Administrative Procedure Act.¹¹ In doing so, however, Congress took the unusual step of emphasizing how notice-and-comment was just one, rather than the primary, means of democratizing sentencing policy. As the legislative history regarding the notice-and-comment mandate explains:

If notice-and-comment is merely the last step in a robust process of ensuring sentencing policy reflects the will of the people, what are the other components of that process? Again, the text of the Sentencing Reform Act and its legislative history provide some answers.

To begin with, consider the membership of the commission itself. When it creates an administrative agency, Congress often makes the agency’s leadership “representative” in a thin way, namely, by having some of the leaders from one political party and some leaders from the other party.¹³ This is what Congress did with the commission. Yet Congress also went one step further by requiring that the president consult with “representatives of judges, prosecuting attorneys, defense attorneys, law enforcement officials, senior citizens, victims of crime, and others interested in the criminal justice process” in making appointments to the commission.¹⁴ The goal of this consultation mandate was to “assure a broadly representative” set of commissioners who would reflect a “diversity of backgrounds.”¹⁵

Of course, there are limits to the depth and range of perspectives one can find in just seven people. And while notice-and-comment procedures can provide much of what is missing, Congress recognized that fully representative policy making would require more targeted cultivation of perspectives. Five features of the Sentencing Reform Act help achieve that goal.

First, the Act empowers the commission to “hold hearings and call witnesses in the fulfillment of its duties.”¹⁶ Congress believed this to be a crucial tool for imbuing diverse perspectives into the commission’s work.¹⁷ Moreover, the Act’s legislative history makes clear that Congress expected the commission to hold hearings on its own policy proposals and conduct oversight regarding the effectiveness of various actors within the criminal justice system, such as the Bureau of Prisons.¹⁸

Second, the Act requires the commission, in “fulfilling its duties and in exercising its powers,” to “consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system.”¹⁹ To ensure such consultation occurs, the Act requires representatives of federal probation officers, corrections officials, judges, prosecutors, and defenders to comment on (and “question”) the commission’s work “whenever they believe such communication would be useful.”²⁰ The same representatives must, “at least annually,” submit written reports “assessing the Commission’s work” and “suggesting changes in the guidelines that appear to be warranted.”²¹

Third, the Act requires that the commission’s rules be promulgated in a way that facilitates public deliberation before those rules become finalized: 28 U.S.C. § 994(p) largely mirrors the Administrative Procedure Act’s requirement that an agency accompany final rules with a “general statement of their basis and purpose.”²² And the same provision incorporates the usual requirement that agencies allow Congress time to review federal regulations before they become finalized.²³

Fourth, the Act requires the commission to “give due consideration” to “any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant.”²⁴ The Act’s legislative history states that the “due consideration” mandate requires the commission to “respond” to defendant petitions, “state reasons for any declination to make modifications,” and “keep the Congress informed of such actions on an annual basis.”²⁵ The legislative history further states that the defendant petition provision aimed to “assure that the Commission is constantly altered to the possible need for amendments to the Guidelines.”²⁶

Scholars have long noted how a collateral consequence of conviction is the marginalization of one’s political voice, both formally through such measures as felon disenfranchisement and informally through social stigma.²⁷ Given the rule of devaluing the perspectives of people convicted of crimes, the Act’s defendant petition provision is all the more remarkable. Rather than merely affirming convicted people’s status as equals, the defendant petition provision grants those people special status, requiring that their comments be treated with extra care. The end result is that some of those most affected by the commission’s rules are granted, at least on an individual level, especially strong rights to be heard in the commission’s policy-making processes.

Fifth, for all the uniqueness of the defendant petition provision, it may not be the piece of the Act that is most remarkable in terms of imbuing democracy into the commission’s work. That designation could be placed on a more subtle statutory provision, a qualification on the Act’s requirement in 28 U.S.C. § 994(o) that the commission “review and revise” its sentencing guidelines. The qualification is that such policy making—which Congress believed would represent the “bulk” of the commission’s work²⁸—be conducted only “in consideration of comments and data [the agency] receives.”²⁹

At first glance, requiring an agency to do its work in light of public input seems ordinary, a mere restatement of the notice-and-comment requirement rule that applies to essentially all federal agencies. On closer examination, however, it becomes clear that 28 U.S.C. § 994(o) is not about notice-and-comment, which applies to rules the agency has chosen to promulgate, but instead applies to the choice about what rules to promulgate in the first place (and, notably, what existing rules to “review”). In other words, 28 U.S.C. § 994(o) is about agenda setting. It requires the commission to have the very first step of policy making—deciding what to do—be driven by the public.

One might assume that agenda setting in federal agencies is typically driven by public input. Familiarity with federal administrative law dispels this illusion. As noted above, the role of the public in most agency agenda setting is inchoate at best.³⁰ While most organic statutes require that an agency’s rules be subject to public comment, they rarely include a provision requiring that the agency’s agenda setting be subject to such comment, let alone a provision requiring that such agenda setting be driven by public input. At most, the public can submit comments to the Office of Management and Budget about the executive branch’s annual regulatory agenda.³¹ But that is a far cry from telling a specific agency what that agenda should be in the first place.

Of course, 28 U.S.C. § 994(o) is vague. The Act leaves it up to the commission to determine how to translate public input into guidelines revisions. Yet the requirement nevertheless stands. The commission must, in one way or another, make both its first-order policy-making decisions (about what issues to address) and its second-order policy-making decisions (about what policies should fix those issues) based on public input.

In sum, the commission’s structure makes it, at least compared to most federal agencies, unusually primed for being responsive to the public. The commission’s policy makers must be remarkably representative. In producing those policies, the commission must take unusually strong steps to listen to and engage the public and those most directly affected by the policies the agency makes. And in deciding what to do in the first place, the commission must seek out the public’s desires and let those demands drive the agency’s work.

One lesson of administrative law is that statutory commands do not always translate into agency action. On its own, the Act’s promise of democratic sentencing policy is just that: a promise, one that may or may not have been fulfilled. The question, then, is how the commission has worked to meet the demand of democracy inherent in both the Act and in Booker—and, more important, whether the commission will do so in the years to come.

III. Realizing the Commission’s Democratic Promise

We will leave it to historians to assess how the first four decades of the commission’s work realized the democratic vision laid out in the Act. Here, we simply review how the commission is currently fulfilling the demand for democracy in sentencing. Specifically, we note the most recent steps the agency has taken toward making its policy making democratic and suggest how those steps have paid off.

We begin with the Act’s requirement that the commission subject its policies to notice-and-comment rulemaking. In some agency contexts, principal policy makers have little or no knowledge of the comments made by ordinary members of the public, with only input from “insiders” making its way to the heart of the policy-making process. Nothing could be further from the truth when describing how comments are dealt with at the commission. And the proof is in the pudding: When the agency promulgated new policies in 2023, after being without a quorum of commissioners for four years, we justified them by quoting from the letters we received from victims, incarcerated people, and concerned community members.³²

Commissioners’ ability to draw on input from ordinary people is not a matter of personal preference or effort—it is a matter of structure. The commission has been able to solicit and obtain a broad array of input thanks to its new public comment portal, built by staff during the period the commission lacked a quorum. Moreover, the commission has partnered with the Bureau of Prisons to provide incarcerated people with the ability to submit comments to the commission by e-mail. Commissioners have been able to inject that input into policy making because the commission’s staff takes care to bring comments from all people—not just the powerful—to the attention of all involved in agency policy making. As we told the public midway through our policy-making process that year: “So far, we have received over 1,500 comments. Some are from federal judges. Some are from Senators. About 90% are from currently incarcerated people. It does not matter if you sit in the halls of Congress or at the desk of a prison library. When you speak to the Commission, you will be heard.”³³

Next, consider the statutory provision regarding commissioner selection. In the current slate of seven commissioners, we can see how this statutory mandate pays off. Some commissions are men. Most are women. They are Black, White, Asian, and Latino. Some were born into citizenship. One applied for and earned that citizenship. Some have served as prosecutors. Some have served as public defenders. They have seen the criminal justice system as attorneys, policy makers, and advocates. Some have had loved ones who have suffered as victims. And some have had loved ones who have suffered in a jail, in a prison, or under some form of community corrections.

It is difficult to overestimate the impact of this diversity on the agency’s work. Just look at how the commission operates at public hearings. The questions commissioners ask witnesses reflect a remarkable range of backgrounds, perspectives, and experiences. That diversity lets us solicit better reflections and input from our witnesses. And, more important, it lets commissioners’ internal deliberations produce the same kinds of outputs.

On the subject of hearings, the commission’s recent work again shows our commitment to diverse perspectives. For years, the agency has taken care to ensure that all major amendments receive a public hearing. At those hearings, the public gets to see what prosecutors, public defenders, judges, probation officers, and victims’ rights advocates think about the commission’s work. In 2023, the agency took our efforts in this area one step further: for the first time, we heard from panels of formerly incarcerated people. One cannot put in words how powerful it is to hear from the experiences of those directly impacted by our policies. The recordings of the commission hearings serve as a testament to the power that lived experience can and should have on policy making.

The commission has taken a unique approach to fulfilling the Act’s consultation mandate. Over the last four decades, the agency has convened a range of advisory groups, which allow stakeholders to serve as sounding boards throughout the policy-making process. In its early history, the commission convened advisory groups of federal judges and experts in criminal justice research. Today, the agency uses advisory groups to obtain the perspectives of probation officers, victims of crime, defense practitioners, and those involved in the intersection of federal sentencing and tribal issues.

Again, it is difficult to overestimate the importance of advisory groups in the commission’s work. There is little substitute for sustained review of the agency’s work by those most affected by that work. It is through their lived experience with sentencing—the gritty realities of the guidelines, warts and all—that members of advisory groups make their mark on the agency’s work. In too many ways to count, that expertise has made the commission’s policies sounder, smarter, and more just.

The defendant petition process, though it operates largely outside the public view, is nevertheless an important part of the agency’s work. Countless staff hours are spent reading and responding to those petitions. And, like the comments we receive from ordinary people on our proposed policies, the petitions we receive from defendants make their way throughout the commission, including into the commissioners’ ears.

If one wants to see how seriously the commission takes the review of its final policies, look no further than what it submits to Congress at the end of each policy-making cycle. While the Sentencing Reform Act only requires that guideline amendments be subject to a 180-day stay-and-review period, the commission has chosen to also subject its policy statements to this rigorous level of review. And in submitting policies to Congress, the commission takes immense care to craft what it calls “Reasons for Amendment” that reflect a strong commitment to publicly articulating detailed justifications for the work we do.

Long-standing observers of the commission’s work may not realize the unique and innovative way the agency fulfills the requirement that its policy-making agenda reflect public input. The agency does so through the long-established practice of submitting proposed priorities for each policy-making cycle to the public for comment. The fact that the process of publicly proposing and finalizing priorities is the product of agency decision-making, rather than statutory mandate, reflects how deeply the commitment to democracy runs in the commission’s blood. Every difference between a proposed priority list and its final form is proof positive that the commission’s commitment is a real one.

All of this brings us to where we started: the commission’s 2024 solicitation of priorities for the agency’s work. That solicitation merely extends the agency’s commitment to democracy reflected in its priority proposal process. By the time this piece is published, we will know the payoff of this new approach to priority setting. If the strong response the agency has received in the opening days of the priority submission period is any indication, it is likely to be a success.

Conclusion

It is the nature of our democracy that its government can always be made “more perfect.” The same is true of the commission. Its efforts to meet the demand for democracy inherent in the Sentencing Reform Act have been remarkable. It seems reasonable to suggest that these efforts have played a role in securing continuing judicial reliance on the guidelines in the post-Booker world. But it also seems reasonable to believe that the commission can do more to make its work more democratic—more truly “of the people, by the people, and for the people.” The question, of course, is how.

Answering that question should be a central mission of the commission’s work in the years to come. Regardless of whether you are a strong believer in sentencing guidelines or oppose them, whether you believe federal sentencing is largely working or think it is largely broken, we should all agree that a more democratic commission is a better commission.

As a reader of the Federal Sentencing Reporter, now or in the future, you care about the commission’s work. Given that, we urge you to help the commission live up to its highest and most central ideal. Tell the agency how it can better embrace democratic values of accountability, representation, and transparency. Tell the agency how it can facilitate public deliberation and participation regarding criminal justice policy. And tell the agency how its work can reflect the values of all our nation’s people. When you do, you won’t just be helping the agency fulfill the demands of democracy placed upon it by statute and case law. You will be helping to build a fairer, more just sentencing system.

Appendix

Federal Register Notice of Proposed 2024–2025 Priorities

United States Sentencing Commission

AGENCY: United States Sentencing Commission.

ACTION: Notice; Request for comment.

SUMMARY: As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible policy priorities for the amendment cycle ending May 1, 2025.

DATES: Public comment should be received by the Commission on or before July 15, 2024. Any public comment received after the close of the comment period may not be considered.

ADDRESSES: There are two methods for submitting public comment.

Electronic Submission of Comments. Comments may be submitted electronically via the Commission’s Public Comment Submission Portal at https://comment.ussc.gov. Follow the online instructions for submitting comments.

Submission of Comments by Mail. Comments may be submitted by mail to the following address: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs—Priorities Comment.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p). The Commission provides this notice identifying the possible policy priorities that the Commission expects to focus on during the amendment cycle ending May 1, 2025.

In light of the fortieth anniversary of the Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

• (1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

• (2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

• (3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

• (4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991 (b)(2).

• (5) Establishing “general policies and promulgat[ing] such rules and regulations for the Commission as are necessary to carry out” the commission’s statutory missions. 28 U.S.C. 995(a)(1).

• (6) Requesting “such information, data, and reports from any Federal agency or judicial officer as the Commission may from time to time require and as may be produced consistent with other law.” 28 U.S.C. 995(a)(8).

• (7) “[S]erving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices.” 28 U.S.C. 995(a)(12)(A).

• (8) Devising and conducting “seminars and workshops providing continuing studies for persons engaged in the sentencing field” and “training programs of instruction in sentencing techniques for judicial and probation personnel and other persons connected with the sentencing process.” 28 U.S.C. 995(a)(17)–(18).

• (9) Making “recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.” 28 U.S.C. 995(a)(20).

• (10) Holding “hearings and call[ing] witnesses that might assist the Commission in the exercise of its powers or duties.” 28 U.S.C. 995(a)(21).

• (11) Performing “such other functions as are required to permit Federal courts to meet their responsibilities under section 3553(a) of title 18, United States Code, and to permit others involved in the Federal criminal justice system to meet their related responsibilities.” 28 U.S.C. 995(a)(22).

The Commission seeks public comment on what work it should prioritize during the amendment cycle ending May 1, 2025. In particular, the Commission invites the public to recommend specific avenues of research or policymaking that would allow the Commission to fulfill the statutory goals cited above. Commenters are encouraged to provide text of proposed amendments, policy statements, or research agendas that might address the relevant priority. Commenters are welcome to propose lines of work that could be completed in the upcoming amendment cycle, as well as priorities that might require multi-year efforts to complete.

The Commission also seeks comment on the following, more specific proposed priorities:

• (1) Continuation of ongoing priorities from prior amendment cycles and possible consideration of amendments that might be appropriate, including continued examination of the career offender guidelines (and alternative approaches to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense”) as well as exploration of ways to simplify the guidelines (including continuation of its work from last amendment cycle on possible amendments to the Guidelines Manual to address the three-step process set forth in § 1B1.1 (Application Instructions) and the use of departures and policy statements relating to specific personal characteristics).

• (2) Implementation of any legislation warranting Commission action.

• (3) Resolution of circuit conflicts as warranted, pursuant to the Commission’s authority under 28 U.S.C. 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344 (1991).

• (4) Consideration of other miscellaneous issues coming to the Commission’s attention.

The Commission also welcomes comment on any additional priorities commenters believe the Commission should consider in the upcoming amendment cycle and beyond.

Pursuant to 28 U.S.C. 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

Public comment should be sent to the Commission as indicated in the ADDRESSES section above.

AUTHORITY: 28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 2.2, 5.2.

Carlton W. Reeves, Chair.

Notes