President Donald Trump has tapped five people for the influential commission that sets guidelines for federal prison sentences, but advocates for change on both the left and right are calling the slate "antithetical to reform" and urging senators not to confirm the picks.
The U.S. Sentencing Commission lost a quorum in January 2019 and has not been able to make changes since Congress passed the First Step Act to trim some sentences. Reformers say judges need updated guidance for sentencing first-time offenders and granting compassionate release to older inmates, a program that has been expanded under the new law and amid the coronavirus pandemic.
Yet advocates told Law360 they would rather have a powerless panel than see these nominees confirmed to a commission that has in recent years reduced some sentencing recommendations, especially for drug crimes, and set the agenda with research ranging from racial disparities in the application of mandatory minimums to variation among judges in the same city.
"The Sentencing Commission sets the guidelines that federal judges have to start every sentencing with. That's the starting point, so it influences every sentence," said Kevin Ring, president of Families Against Mandatory Minimums. "If it's an anti-reform commission, it can do a lot of bad."
Ring, a former Republican congressional staffer who spent 20 months in prison for his role in the Jack Abramoff lobbying scandal, wrote to senators Friday and urged them not to confirm nominees this year because there is not enough time for proper vetting.
"These are people who do not believe that we should be moving sentencing policy in this country in the direction it has been going for a while," said Sakira Cook of the left-leaning Leadership Conference on Civil and Human Rights. "This slate is only exceptional for what it is lacking in diversity in race or professional background."
The five selections include four former prosecutors, several of whom joined the federal bench and established reputations for unusually long sentences, advocates said.
The president's pick to chair the panel, Judge K. Michael Moore of the Southern District of Florida, imposed the maximum 20-year sentence for selling synthetic marijuana on Ronen Nahmani that Trump commuted last year.
Bipartisan lawmakers had urged clemency for Nahmani, whom the White House described as a "non-violent, first-time offender with no criminal history" with five young kids and a wife diagnosed with terminal cancer.
Another nominee, Judge Henry E. Hudson of the Eastern District of Virginia, earned the nickname "Hang 'Em High Henry," according to the Washington Post, and once said, "I'm a prosecutor; I live to put people in jail."
Both judges had stints leading the U.S. Marshals Service during the George H.W. Bush administration, working under then-Attorney General Bill Barr, who has reprised that role in the Trump administration. Advocates said the two judges' views reflected American attitudes of 1990 rather than 2020.
"They are a tough-on-crime bunch," said Douglas A. Berman, a sentencing scholar at Ohio State University's Moritz College of Law. "At best, they're status-quo types. At worst, they actually may want to move the system to be more harsh."
Cook called Judges Moore and Hudson "antithetical to reform." Rachel E. Barkow, a New York University law professor who served on the commission until last year after President Barack Obama appointed her, said a third nominee — Judge Claria Horn Boom — has also handed down long prison terms since joining the federal bench last year.
The advocates and experts said they had not heard of Judge Boom until recently. The Kentucky jurist may have been included to draw support from Senate Majority Leader Mitch McConnell, R-Ky., who boosted her judicial nomination and controls the floor schedule. One of the panel's two current members, Judge Danny C. Reeves, is also from the Bluegrass State.
The other two nominees elicited more enthusiasm from advocates of a less punitive approach.
John Malcolm of the conservative Heritage Foundation think tank also has prosecutorial experience — seven years with the U.S. attorney's office in Atlanta and three years as a senior official in the U.S. Department of Justice's Criminal Division under President George W. Bush.
In an interview Monday, Malcolm told Law360 that he wouldn't bring an agenda to the position.
"I consider myself to be a law-and-order person, but I also believe that when it comes to criminal justice and sentencing, the pendulum can swing too far," he said. "People ought to be provided some incentives and given some opportunities to turn their lives around, which I think is good for them and good for public safety."
Malcolm currently advises the Trump administration on judicial nominees. On Tuesday, he published an updated list of suggestions for the U.S. Supreme Court.
Last month, he questioned criticism of the U.S. incarceration rate as the world's highest. Many countries, he posited, "have an under-incarceration problem, and I am glad that we incarcerate more people than they do."
However, advocates called Malcolm open-minded and cheered his support for 2018's First Step Act.
"He's definitely one of the pro-criminal justice reform conservatives," said Kara Gotsch of the Sentencing Project.
Brett Tolman of the Tolman Group, a former U.S. attorney for Utah who supports a less punitive approach, lauded Malcolm for supporting some expungement proposals and embracing changes that have succeeded at the state level.
The final selection — Third Circuit Judge L. Felipe Restrepo — spent six years as a public defender and clerked with the American Civil Liberties Union's National Prison Project before Obama appointed him to the bench. Judge Restrepo is a Democratic selection; the bipartisan commission legally cannot have more than four members of the same party.
Previous administrations would have granted another pick to the other party, Barkow said. "I have never before seen four Republicans and only one Democrat nominated. That's not much of a compromise."
Tolman, the former U.S. attorney, lamented the dominance of prosecutorial picks for the commission, saying, "You can't help but feel like it's been slanted one way for decades."
The National Association of Assistant U.S. Attorneys did not respond to an interview request.
Cook, of the civil rights group, also lamented the lack of demographic diversity. If Trump's five picks are confirmed to join Judge Reeves and Democratic appointee Judge Charles R. Breyer of the Northern District of California, the panel's seven members would include six sitting judges and five former prosecutors but just one woman and one person of color. Judge Restrepo is Hispanic.
Cook said the panel "can contribute to the crisis of mass incarceration. It's critical to have a commission that is balanced in its approach and diversity and experience."
Several advocates supported Ring's call for senators not to move quickly on the nominations, which could easily stall during election season. Whether the nominees advance this year depends on McConnell and Senate Judiciary Committee Chairman Lindsey Graham, R-S.C.
Sentencing Commission picks usually get a confirmation hearing before the Judiciary Committee, but there are just a few weeks of legislative session planned before November's election, and Senate Republicans are likely to prioritize the approximately 20 pending judicial picks who need a hearing.
Some Republicans might oppose the "tough on crime" selections. Gotsch of the Sentencing Project said that Sen. Chuck Grassley of Iowa, who previously chaired the Judiciary Committee, privately fought against a previous Trump pick viewed as even harsher, DOJ veteran William G. Otis.
Otis, whom The New Republic magazine dubbed "The Man Who Hates Criminal Justice Reform," was not included in this batch of nominees.
A spokesman for Grassley spokesman told Law360 on Tuesday that the senator "will closely review their backgrounds and qualifications as these nominees come before the Senate Judiciary Committee."
Spokespeople for McConnell, Graham and other Judiciary Committee members did not immediately respond to requests for comment.
--Editing by Jill Coffey and Bruce Goldman.
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By Andrew Kragie | August 18, 2020, 7:49 PM EDT