Commentary: Senators Seek to Increase Membership of US Sentencing Commission to Include Public Defenders

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By Rory Fleming

The job of a federal public defender is often as necessary as it is futile. With the full weight of the Justice Department pushing on defendants to plead guilty, virtually everyone does so — even more so than in state courts. It is then the federal defender’s job to plead for mercy at sentencing, with their client’s head on the figurative guillotine.

And what a guillotine it is, with the federal beach being nearly bound to the borderline-mandatory, draconian sentencing guidelines promulgated by the US Sentencing Commission.

Supporters claim the Commission was created by the Comprehensive Crime Control Act of 1984 for regional consistency in sentences, as well as “truth in sentencing.” This is euphemistic: the Commission was created as part of a tough-on-crime push in Congress with the intent to tie federal judges’ hands, because they were seen by power players as coddling people who commit crimes. The overall thrust of the 1984 bill was to abolish parole, take away the focus on rehabilitation at sentencing for young adult offenders, and federalize more crimes.

With that backdrop, Senators Durbin (D-IL) and Booker (D-NJ) believe they have the ticket to reform. Their new bill, the Sentencing Commission Improvements Act, would add a federal public defender as a non-voting member of the seven-member Sentencing Commission.

The naivety required to suggest that this would create any meaningful change is enormous. But let’s look at what Durbin and Booker have to say for themselves.

“The federal Sentencing Commission was created to be fair, impartial, and capable of providing evidence-driven improvements to our sentencing system, which is fraught with disparities,” Booker said in his announcement, forgetting that it was actually segregationist Senator Strom Thurmond’s (R-SC) brainchild to begin with.

In addition, today’s sentencing disparities in federal court are largely marginal, since the system is harsh for everyone — even the police, who Republicans trip over themselves to defend at all costs.

A new case from the Fourth Circuit, the federal appeals court for Maryland, North Carolina, South Carolina, Virginia, and West Virginia, is illustrative. Robert Michael George, a former Sergeant with the Hickory Police Department in North Carolina, was caught on camera throwing a woman out of the back of his car. Terrible, and possibly physically damaging, but not far from the heartland for American policing if we are being honest. And not that different from the routine domestic violence that goes uncharged or is treated as a misdemeanor in most courts throughout the country.

George was charged under the federal criminal civil rights statute, 18 U.S.C. § 242, and U.S. probation officers calculated his guidelines range as 70 to 87 months. Senior District Judge Graham C. Mullen sentenced him to four years probation, more than he ever would have gotten in the local county court. (The DA at the time, David Learner, originally charged the victim with resisting an officer and disorderly conduct, but not the officer.)

The three-judge panel, consisting of only Obama appointees, reversed the sentence and ordered a harsher one by focusing on Judge Mullen allegedly viewing the defendant’s cop status as mitigating and seeing the incident as “almost accidental.” More importantly for understanding how the federal justice system works, the judges, all ostensibly liberal ones, attacked Judge Mullen for focusing on the way collateral consequences will devastate the defendant’s life going forward.

Senator Durbin said in his announcement that, “The U.S. Sentencing Commission is tasked with establishing practices and policies to promote transparency and reduce sentencing disparities, but the Commission is missing a crucial perspective from the federal public defender system.”

But is the Commission really “missing” this perspective? The Commission knows how the federal defender corps views its work. Undermining the guidelines and their perceived legitimacy is a huge part of what federal defenders do. It is usually the only way to be an effective advocate for one’s client in federal criminal court. Do we really think that the existing members of the Commission would even care about what a federal defender would have to say? They have had decades to make their policies more responsive to the defense bar’s concerns.

The reality is that the Sentencing Commission is one of the few places where mediocre bigots from the tough-on-crime set can get prestigious jobs without anyone caring. Look at Judge William H. Pryor on the Eleventh Circuit. A far-right bigot, Pryor believes that homosexual adults should be jailed for having consensual sexual relations. He also believes factually innocent Black men accused of murder, namely Anthony Ray Hinton, should be executed. Guess who appointed him to the body? President Obama.

If this pathetic bill is the best that these Senators can do, then clearly they either don’t understand or don’t care about the issue. If they really want to send the signal that they want to end mass incarceration, nothing less than proposing the abolition of the Sentencing Commission will do.

Rory is a writer and licensed attorney. 

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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