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Sentencing policy sparks clash over future criminal justice bills

Republican senators warn that it is up to Congress to determine when prisoners can get relief from long sentences

Sens. Charles E. Grassley, right, and Mike Lee meet before a news conference in the Capitol on the passage of a criminal justice reform bill in 2018.
Sens. Charles E. Grassley, right, and Mike Lee meet before a news conference in the Capitol on the passage of a criminal justice reform bill in 2018. (Tom Williams/CQ Roll Call)

A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law, an approach Republican senators warned will hamper, if not destroy, the possibility of future criminal justice legislation.

The policy approved this month by the low-profile U.S. Sentencing Commission is deep in the legal weeds, giving guidance for federal judges on how to interpret a section of a sweeping bipartisan overhaul of the federal criminal justice system passed in 2018.

But the debate on that approach, which goes into effect in November unless Congress disapproves it, offers an inside look at the negotiations and challenges for lawmakers who want to take more steps to address racial inequality in the criminal justice system through sentencing changes.

The seven-person sentencing commission, brought back into action last year with President Joe Biden’s appointments, found common ground on new judicial guidelines addressing fentanyl-laced “fake pills” and sexual abuse against prisoners.

But the guideline on reducing sentences put the commission in the middle of the broader partisan clash over how to approach violent crime and fair punishment in the nation’s federal courts.

Compassionate release

A range of advocacy groups, legal organizations and lawmakers weighed in on whether the commission should approve of guidance to federal judges that would expand the circumstances for so-called compassionate release.

In the 2018 criminal justice law, Congress allowed federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons. Judges released thousands of inmates through that mechanism during the COVID-19 pandemic.

Under the sentencing guidance the commission adopted this month, a change in a law could be potential grounds for reducing a defendant’s sentence. Specifically, judges could consider reducing the sentence of an inmate who has served 10 years of an “unusually long sentence” if there is a “gross disparity” between their sentence and sentences imposed under new law.

Defense attorneys and advocates for prisoners had backed the proposed guidance, arguing that it would empower federal courts to correct long-standing injustices and reduce unnecessary incarceration, as it had safely for some inmates during the pandemic.

“Absent intervention, some will spend decades longer in prison than they would under current law, perpetuating racial disparities,” the Brennan Center for Justice told the commission in a letter.

Some federal prosecutors had opposed the proposal, arguing the commission overstepped its role and did not yet know the public safety impact of the pandemic’s expansion of compassionate release.

“Federal law mandates a statute expressly provide for retroactive sentencing adjustments,” Steven Wasserman, president of the National Association of Assistant United States Attorneys, told the commission earlier this year. “It is the role of Congress to decide if a sentence can be adjusted by a change in the law, not the sentencing commission.”

Poisoned well

Senate Minority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley of Iowa, who was the lead Republican on the push for the 2018 law, warned the commission that the guidance would cause problems for future bills that would reduce prison sentences.

McConnell in a February letter to the commission said that no issue was more controversial during the debate on the 2018 law than whether it would be applied retroactively to those already in prison. Congress is extremely careful with use of retroactivity—if lawmakers want something to be retroactive, they typically say so clearly in the law—and so guidance that approves of judges doing so would “poison the well” in Congress, he said.

“If we legislators are given reason to expect that any future legislation of this kind will reduce the sentences of current prisoners whether we intend it or not — whether we actually legislate it or not — we will simply not pass such laws,” McConnell wrote. “By trying to short-circuit your way to this one quasi-legislative change in the near term, you would destroy any possibility of additional future legislation in this area.”

Grassley told the commission in a letter that a retroactivity proposal by the commission would “make bipartisan work much harder to do in the future.”

The guidelines went through changes following the comments from Senate Republicans and Democrats, but the thrust of the provision remained the same and the commission voted for guidelines that approve of judges retroactively considering certain sentences.

Future impact

In many ways, broad legislation on criminal justice overhauls has no clear path through Congress, with Democrats holding a slim majority in the Senate and House Republicans showing no signs of prioritizing changes.

But McConnell’s comments do not bode well for Democrats looking for room to pass sentencing changes, such as legislation that would eliminate the federal sentencing disparity between crack and powder cocaine and make those changes retroactive.

According to McConnell in his letter to the commission, the retroactivity issue torpedoed a preliminary deal on that bill last Congress. Some negotiators reached a preliminary deal that would have increased parity between crack and powder cocaine, McConnell wrote, but that would not have applied to people already sentenced.

But, according to the Republican, Senate Judiciary Chair Richard J. Durbin of Illinois met with the sentencing commission and tried to use the body as an end around to make the legislation retroactive.

“The specter of this extra-legislative backdoor amnesty for crack dealers ended any possibility of a compromise then and there,” McConnell wrote.

Durbin objected to that characterization in a letter that responded to McConnell’s letter, calling it “incorrect.” Durbin wrote that bipartisan negotiations continued at least two weeks after his meeting with the commission.

A compromise provision was drafted and ready to be put in an omnibus spending measure, Durbin said, but “it was Senator McConnell, exercising his prerogative as Minority Leader, who refused to approve its inclusion.”

Commission vote

At a meeting earlier this month, the sentencing commission itself was split on where to draw the line on guidelines for compassionate release.

Judges might have saved thousands of lives through compassionate release during the pandemic, said U.S. District Judge Carlton W. Reeves, chair of the sentencing commission.

Research suggests that granting release to those prisoners reunites families, bolsters public safety and restores communities, he said at the meeting.

“Judges did not unleash a flood of crime into our communities,” Reeves said. “Research instead suggests that those who received those sentence reductions had an astonishingly tiny recidivism rate of one-seventh of 1 percent.”

But three members who voted against the compassionate release amendment argued the provision went further than the body’s legal authority.

“We are concerned that the commission is about to make a seismic structural change to our criminal justice system without congressional authorization or directive,” Commissioner Candice C. Wong said ahead of the vote, reading a joint statement from her and two other commissioners.

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