Durbin, Booker, Judiciary Democrats Send Letter Supporting Proposal To Allow Federal Defender Participation At The U.S. Sentencing Commission

Durbin, Booker, Judiciary Democrats Send Letter Supporting Proposal To Allow Federal Defender Participation At The U.S. Sentencing Commission

CHICAGO - U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and U.S. Senator Cory Booker (D-NJ), along with U.S. Senators Chris Coons (D-DE), Mazie Hirono (D-HI), Alex Padilla (D-CA), Adam Schiff (D-CA), Peter Welch (D-VT), Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), and Amy Klobuchar (D-MN) sent a letter to Chair of the U.S. Sentencing Commission, Judge Carlton Reeves, emphasizing their support for the U.S. Sentencing Commission's proposed amendment to its Rules of Practice and Procedure that would allow a representative of the Federal Public and Community Defenders and a representative of the Judicial Conference's Criminal Law Committee to attend Commission meetings, receive the same policy materials as commissioners, and question witnesses at public hearings. In the letter, the Senators urge the Commission to adopt the broader of its two bracketed options-allowing the representatives to attend all meetings at which Commission staff is present, rather than only public meetings and nonpublic briefings-and to provide meeting materials at the same time commissioners receive them.

The letter was sent in support of the Federal Defenders, who have sought this kind of representation on the Commission for decades. The Commission is an independent agency within the federal judiciary and was created to establish policies and practices to help reduce sentencing disparities. It specifically collects and analyzes information on federal sentencing practices to help develop fairer and more effective criminal justice policies.

The Senators wrote, "We write in response to the Sentencing Commission's request for comment on its Proposed Amendment to the Rules of Practice and Procedure. Specifically, we urge the Commission to adopt Part C, which would allow a representative of the Federal Public and Community Defenders, along with a representative of the Committee on Criminal Law of the Judicial Conference of the United States, to participate in the Commission's meetings and public hearings."

For several Congresses, Durbin and Booker have introduced the Sentencing Commission Improvements Act, which would add a Federal public defender or community defender to the Commission as an ex officio, nonvoting member. In the letter, the Senators note that Part C is a meaningful step within the Commission's authority toward the balance that legislation seeks to achieve.

In the letter, the Senators outline various reasons for the Commission to adopt Part C in its broadest form. First, they highlight that the Commission's current structure lacks balance. Congress intended the Commission to hear from every component of the federal criminal justice system. The Sentencing Reform Act of 1984 directs the Commission to consult with institutional representatives across that system, and it specifically requires a representative of the Federal Public Defenders-alongside the Department of Justice's Criminal Division-to submit observations on the Commission's work and an annual written report assessing the guidelines. By statute, the Attorney General or the Attorney General's designee serves as an ex officio, nonvoting member of the Commission. So does the Chair of the U.S. Parole Commission, even though the same Act that created the Commission abolished federal parole nearly four decades ago. The Department of Justice's representative attends the Commission's nonpublic meetings, receives the staff briefings, memoranda, and data analyses that shape the Commission's policy choices, and sits alongside commissioners at public hearings. Federal Defenders have no comparable role, even though Federal Defenders and appointed counsel under the Criminal Justice Act represent nearly 90 percent of people charged with federal crimes, and Federal Defender offices serve 92 of the 94 federal judicial districts.

The Senators continued, "This imbalance matters. A substantial share of the Commission's policymaking work takes place in nonpublic meetings and briefings where options are narrowed and data are interpreted long before a proposed amendment is published for comment. When prosecutors are present for those discussions and defenders are not, the Commission loses the perspective of the attorneys who represent the vast majority of people affected by its guidelines. The imbalance also risks creating the appearance that federal sentencing policy is disproportionately shaped by only one party to criminal cases-an appearance that could undermine public confidence in the Commission's work."

The Senators also lay out that the proposed amendment would improve the quality of the Commission's deliberations.

The Senators wrote, "First, we urge the Commission to adopt the bracketed option permitting the designated representatives to attend 'all Commission meetings at which Commission staff is present,' rather than the narrower option limited to 'public meetings and nonpublic briefing sessions' … Similarly, we support the provision giving the designated representatives the same policymaking materials distributed to commissioners in preparation for meetings… Moreover, we support the amendment to Rule 3.4 allowing the designated representatives to participate in public hearings alongside commissioners and to question witnesses… Finally, we support including a representative of the Judicial Conference's Committee on Criminal Law."

The Senators continued, "The Commission has ample authority to make these changes. Congress empowered the Commission to establish general policies and promulgate such rules and regulations as are necessary to carry out its statutory purposes. Adopting Part C would be a sound exercise of that authority."

The Senators conclude by emphasizing that the proposed amendment is a necessary step, but not a substitute for legislation.

The Senators wrote, "While Part C is a welcome and meaningful step, a rule of practice cannot fully substitute for statutory change. The designated representatives would not be members of the Commission, and a rule adopted by one Commission can be narrowed or rescinded by a future one. Only Congress can establish a Defender ex officio member who serves in the same capacity as the Department of Justice's ex officio member."

The Senators conclude, "In the meantime, adopting Part C-including the broader option for meeting attendance-would send a clear message that the Commission intends to set sentencing policy in a fair, balanced, and transparent manner."

The full text of the letter can be found here.

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