When I would catch the first glimpse of the flashing lights of the ambulances and fire trucks that were inevitably ahead and that instantly explained what was happening, the anger would turn suddenly and simultaneously to joy and dread; joy that we would be back to 65 and on our way soon enough, and dread that the wreck and whatever horror came with it would, in just minutes, be upon us.

The feelings would intensify, mostly the dread, as we crawled closer and closer to the wreck. I’m not sure if I’m typical, but I couldn’t look away as we got to the gruesomeness, though I knew better. I still can’t rid those moments and images from my mind, all these years later.

So it is with the story of Lindsay Clancy and her three children. This last month, Clancy has been on trial for the murder of those children in 2023: five-year-old Cora, three-year-old Dawson, and eight-month-old Callan.

I have had the wherewithal not to watch any of the trial as it has been live-streamed and as it’s captivated so many armchair detectives, so many women who have experienced postpartum depression, and those whose appetite for horror is far greater than mine. But I couldn’t help but follow it — if just in a more distant and antiseptic way — along with the accounts of the dueling social media takes on Clancy, her mental health, her husband, motherhood, and culpability, all surrounding what she readily admits she did to her children and to herself.

But unlike the online battles that rage on — and unlike the jury, which has been unable to reach a verdict even after days of deliberation — I find the case uncomplicated and illuminating, rather than perplexing. The facts are so utterly and completely horrible; there is no other way to see them. And for now, anyway, there is little good that’s come of the case. All of it has been strangely clarifying. There is no genuine ambiguity here.

The case reveals with utter clarity the inadequacy of criminal law’s response to this, and so many other tragedies. And it shows how we, in America, get sucked into the drama of the trial and those deficient legalisms around justice and sentencing, all at the expense of what could be a response of more genuine and complete human understanding and grace.

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If somehow you don’t know the facts of the Clancys’ story yet, here they are. There is no dispute about Lindsay Clancy’s actions; she herself has never wavered from them, and the forensics all confirm them. What was happening in her mind while she acted, that is the only thing the trial was ever about. (This next paragraph is where you may want to look away.)

On January 24, 2023, Clancy suggested to her husband that the family have takeout food for dinner. While her husband went out to get it — with a stop at a CVS — Clancy, by her own account, heard a voice commanding her to kill their children so that she could then kill herself. She took the children, one-by-one, to the basement and strangled them with exercise bands. Then she went upstairs, swallowed an assortment of pills, sliced her neck with a knife, and jumped out a second-story window. The children died, and she lived, with injuries that have left her permanently in a wheelchair.

Before the killings, Clancy had sought psychiatric help as she struggled with depression, suicidal thoughts, and other mental health symptoms following the birth of Callan. She had been prescribed all kinds of medications but was never deemed a danger to herself or others by clinicians.

And with the charges against her and the trial, the online debate exploded: is she legally guilty and what should be her punishment? The legal fight is powerfully absorbing; like just any televised sporting or political contest. But it asks of us the least important questions.

Clancy has herself said — and shown — that she is, in some fundamental human way, guilty, notwithstanding the legal constructs we’ve erected so our society can function. Regardless of the degree of her blameworthiness, Clancy herself knows it; that no matter how very sick she was, no matter that she desperately sought help for her condition, it was her hands that killed those children.

Whether you think she has shown sufficient remorse or not, Clancy is no psychopath. During the medical examiner’s description of the children’s fatal injuries, she sobbed uncontrollably, moaning, “I can’t do this.” She was so distraught that the judge had to recess the proceedings.

In her piece on what she rightly calls, “The abject hell of the Lindsay Clancy trial,” Washington Post columnist Monica Hesse shared how “nearly every mother has said when we have discussed this case at the swimming pool, or on the sidewalk after pickup, or in a group chat that originally started because of Dolly Parton . . . [t]he thing that almost every mother has said is, I would be dead by now.” It is the barest expression of this guilt.

A just society, though, punishes only the blameworthy. We give a jury of twelve of our fellow citizens a menu of choices — murder, manslaughter, or not criminally responsible — to decide, and every choice is an answer to the same question: how much is she to blame? There is no line on the verdict form for anything else. Is it any wonder the jury has had trouble reaching a verdict?

A just society must react when horror like this occurs. There must be some fallout, some aftermath, some repercussions. Here is where the case shows how wholly inadequate our laws and our courts are. But they are seemingly all we have. Maybe the DA had no choice but to bring charges.

As new law students are just now gathering in classrooms around the country, they are being taught that there are four purposes of sentencing: retribution, deterrence, incapacitation, and rehabilitation. We know, if only from somewhere deep in our souls, that there is so much more to aspire to beyond these goals after a crime occurs, from the healing of victims to the restoration of our community and to all else that is of spirit rather than linear.

In a speech titled, No Future Without Forgiveness, Archbishop Desmond Tutu, who chaired South Africa’s Truth and Reconciliation Commission back in the 1990s, reminded us that retribution and punishment are not the only ways to deal with unmitigated horror. In that speech, he tells the story of Amy Biehl, an American Fulbright Scholar. Biehl had been active in the anti-apartheid struggle, and she was gruesomely murdered by a mob of young people after she drove a friend home to one of the Black ghetto townships. The mob shouted the slogan of one of the liberation movements, “one settler, one bullet.” The leaders of the mob were apprehended and sentenced to long prison terms.

Those leaders later applied for amnesty. Amy’s parents visited the homes of the young men who had killed their daughter and embraced their parents. They visited, again and again, the township and the spot where Amy had been killed. They supported the granting of amnesty. And they started the Amy Biehl Foundation to help support young people in the townships against the consequences of poverty, deprivation, violence, and crime.

Tutu made clear that “[f]orgiveness is not pretending that things are other than they really are — forgiveness can be confrontational, telling it as it is, looking the beast in the eye.

“Forgiveness means bringing good out of evil, love out of hate, light out of darkness, so eternal life stems from the Cross instrument of an excruciating death, the Amy Biehl Foundation out of the gruesome death of a young woman.

“Forgiveness is letting go of your right to retaliation. It is like opening a window to let the fresh air rush into a dank, closed room, it is drawing the curtains apart to let the light stream into a dark room.”

Whether or not you believe Lindsay Clancy is guilty of a crime, her case is a reminder that the verdict, whenever it comes, is the least important thing about it. It answers — inadequately and with a false certainty — the one question we built the law to answer: whether she could tell right from wrong and conform her conduct to the law on that January evening. And it leaves nearly everything worth asking unasked — and unanswered — and everything worth doing undiscussed and not done.

Within days of losing Cora, Dawson, and Callan, their father asked the rest of us to forgive their mother. “I want to ask all of you that you find it deep within yourselves to forgive Lindsay,” Patrick Clancy wrote, “as I have.” American sentencing law has no idea what to do with that. A community experienced a catastrophe. Two families were destroyed by the same acts. A mental health system watched a woman deteriorate, wrote her prescriptions, and did not see what was coming. No verdict in the case will ask that system a single question. The criminal trial will reach none of it.

Lindsay Clancy should not walk free, and neither is her ex-husband. Forgiveness is not an acquittal; Tutu was insistent on that. It is confrontational. It looks the beast in the eye. It requires, first, that we say plainly what happened in that basement, which is precisely what a month of testimony has done and what Clancy herself has never once denied. The trial accomplished something. But consequences and reconciliation are not alternatives. We have a criminal justice system that is pretty good at the first and has almost no vocabulary at all for the second.

Tutu said, “[t]o forgive is not to be altruistic; it is the best form of self-interest. You know what happens to your blood pressure when you are caught in a traffic jam . . . when you don’t forgive, you shut tight the channels that would enable you to be forgiven in your turn; you can’t appropriate God’s forgiveness when you are clogged up with unforgiveness.”

There is something else Patrick Clancy did after the tragedy. In 2024, he and his two sisters started the Heard Foundation, to change how parents are cared for in the months after a birth and, in time, to build a place where they can be treated with dignity. The name is both a pun and a plea: heard, so that a mother who says she is not right is believed; herd, for the people who ought to gather around her. Every January 24th, the anniversary of this horror, Duxbury holds a day of service. He did not wait for a verdict, and he did not need one.

It’s been more than three years since Cora, Dawson, and Callan died. The live-stream of the trial has been the slow roll past the wreckage, and millions of us couldn’t look away. It makes us at least a little bit complicit in the whole affair.

But the thing about a backup on a highway is it always ends. You get past the wreck, the lanes open up, and you are back to 65 with nothing to show for the half hour in traffic but the image you couldn’t turn away from. Maybe the trial of Lindsay Clancy will end today, maybe next week, maybe next year. But soon, we will forget about her; unless, just maybe, we listen to Patrick Clancy and forgive. And maybe, too, if we give to the Heard Foundation (or something like it), join a herd to support those in distress, and contribute to a more complete, more human justice, in Duxbury or in our community. It has nothing to do with a court, or law, or sentencing. It has to do with us.

As usual, below is a quick “TL;DR” for busy readers, followed by a more detailed discussion. I also summarize what to expect regarding the Commission’s composition, with two members leaving at the end of the year and two of President Trump’s nominees pending.

1) Possible Changes to USSC Rules of Practice and Procedure. The Commission’s internal Rules were adopted in 1997 and last amended in 2016. The Commission is exploring at least six substantive changes covering aspects like who sits at the table, adding as nonvoting seats a member of the Criminal Law Committee of the Judicial Conference and a representative of the Federal Public Defenders, making it harder to make amendments retroactive, disclosing Commissioners’ ex parte communications, increasing public participation in agenda-setting, and publicly disclosing meeting materials and nonpublic minutes.

• Effect: If adopted in full, the Commission could operate more transparently, add more voices and broaden participation at meetings and hearings, and could need five votes, rather than four, to apply an amendment retroactively.

2) Final Priorities for the cycle ending May 1, 2027. The Commission approved five priorities, none of them tied to a specific guideline. Beyond the Rules changes discussed above, the headline item is a retrospective evaluation of the entire Guidelines Manual pegged to its 40th anniversary and two decades of advisory guidelines, using regional hearings, symposia, and roundtables.

• Effect: An agenda built for institutional review rather than amendment output (understandable because, as discussed below, the Commission may soon lack the votes to adopt formal amendments to the Guidelines Manual).

3) Unmanned Aircraft Guideline Amendment. The new §3B1.6 provides a 6-level adjustment where the statutory enhancement at 6 U.S.C. § 124n-1(c) applies or the parties stipulate, and a 4-level adjustment where the offense otherwise involved drone use. This approved amendment is effective March 15, 2027, absent contrary congressional action.

• Effect: A significant new Chapter Three adjustment that could apply to all offenses involving a drone, and a stipulation route that makes the 6-level bump available in plea negotiations without a conviction on a qualifying offense.

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Summary of the U.S. Sentencing Commission’s 2026-27 Policy Priorities, Proposed Amendments to Rules of Practice and Procedure, and Promulgated Drone Amendment

Final Priorities

The Commission has adopted five priorities for the 2026–2027 amendment cycle. The first recognizes the forthcoming 40th anniversary of the Guidelines Manual (2027). The Commission hopes to host regional hearings, symposia, roundtables, conferences, “and other tools” to essentially evaluate how the Guidelines are doing and whether significant reforms are needed after four decades of Federal Sentencing Guidelines. The first Sentencing Commission ran out of time and promulgated what it could, with the expectation that those Guidelines were merely “the first step in an evolutionary process” of creating fair guidelines. But the core of the Guidelines Manual has remained largely unchanged.

The second priority is a comprehensive review of the Commission’s Rules of Practice and Procedure. More on that below.

The remaining priorities are standard ones we see every amendment cycle: responses to new legislation and case law, addressing circuit conflicts, and “miscellaneous issues.” There are no specific priorities related to specific guideline amendments, likely a recognition that the Commission could lose its ability to pass new amendments, also discussed below.

The Rules Proposal

The Commission is exploring substantive amendments to its Rules of Practice and Procedure. According to the notice, the Commission amends its Rules of Practice roughly every ten years, with the last round occurring in 2016. The Commission “invites the public to provide comment on the proposed amendment.”

Statutes require the Commission to undertake notice-and-comment rulemaking for guideline amendments, but, as a judicial agency, it is not subject to other transparency statutes like the Government in the Sunshine Act, the Federal Advisory Committee Act, or the Freedom of Information Act. (I have written here about how and why the Commission is so unique among federal agencies.) Much of what follows is the Commission volunteering to bind itself to norms that do not otherwise reach it.

Several changes are on the table, and the Commission says it may promulgate any or all of them, though Chair Reeves at the August 27 meeting emphasized that the proposals were “possible . . . ideas” that should not be read as a final expression of what the Commission will do. The Commission expressly solicited other ideas as well. “There is more work to do,” and Chair Reeves stated that commissioners look forward to hearing from various stakeholders and experts on these issues in the coming months at possible roundtables, symposia, conferences, etc.

Part A (introduction). While Congress gave the Commission broad statutory authorities, the current introduction curiously identifies only a few “principal” purposes of the Commission: establishing guidelines, advising the Legislative and Executive Branches on crime policy, and collecting, researching, and analyzing federal crime and sentencing data. The revised language would simply restate the statutory language of 28 U.S.C. § 991(b) that sets forth the broader purposes of the Commission. Beyond “providing certainty and fairness” at sentencing, Congress told the Commission to establish policies and practices that “permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process,” and to “develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing” set forth in 18 U.S.C. § 3553(a)(2). (Many observers have argued that the Guidelines Manual and Commission could do much more in these categories.)

Part B (voting thresholds on retroactivity). When the Commission votes to pass an amendment, it often then must decide whether to apply the change retroactively. The new proposal would require five affirmative votes to make an amendment retroactive instead of four (with a bracketed fallback to four if only four members are serving). Retroactivity operates in one direction, reaching only amendments that lower a range, 28 U.S.C. § 994(u); 18 U.S.C. § 3582(c)(2). (The Ex Post Facto Clause would seem to foreclose retroactive increases. See Peugh v. United States, 569 U.S. 530 (2013)). Thus, this proposed amendment would make it harder for those currently incarcerated to benefit from future changes that lower prison sentences. Supporters of this change likely had finality and capacity in mind, as retroactive amendments can reopen final judgments in hundreds or thousands of cases.

An issue for comment asks whether a five-vote floor should also apply to other Commission actions.

Part C (who sits at the table). The Attorney General or a designee already sits with the Commission as a nonvoting ex officio member under 28 U.S.C. § 991(a), giving the prosecuting side of the federal sentencing system a standing presence in the Commission’s work. The Judicial Conference’s Committee on Criminal Law and the Federal Public and Community Defenders, both of which live with the guidelines daily, do not have the same access. Part C would let each designate a representative to attend Commission meetings, join deliberations, and question witnesses at public hearings. These participants would not have the ability to vote or make motions.

The proposal grants these new participants access to “the same meeting materials distributed to commissioners,” which could be significant. Right now, the Attorney General’s designee receives all meeting materials (internal memos, impact analyses, staff’s evaluation of alternatives, etc.) and is able to craft DOJ’s proposals and messaging accordingly, while other stakeholders are left with only publicly available materials. (One could imagine a group futilely advocating for a change, not knowing that Commissioners or staff had already ruled it out or enumerated its shortcomings in an internal memo.) This amendment would provide access to certain meeting materials to the new participants, but would exclude “information that is not related to policymaking or data, or is inappropriate for public disclosure, including confidential or sensitive information regarding budgetary allocations or appropriations, personnel and staffing matters, and procurement and contract actions.”

Part D (ex parte communications). Sometimes individuals or stakeholders want to influence Commissioners outside of the formal channels. Sometimes Commissioners may desire to rally support for or opposition to a proposed or final action. The current rules rather vaguely state that “[t]he Commission does not intend to solicit ex parte communications (i.e., communications outside the public comment process) on the merits of a proposed amendment from outside parties.”

Option 1 simply deletes the current provision and would implicitly permit ex parte contacts and impose no disclosure duty. Option 2 permits them but requires disclosure of communications that meet a certain standard, with two bracketed formulations. The communication need only be disclosed if it “provides significant, material information” on a pending proposal, or alternatively if it “is of substantial significance and clearly intended to affect the ultimate decision.” Drafting precise language for a rule like this is no doubt tricky, but the current language (perhaps unavoidably) seems rather easily evaded by a minimally creative lawyer. Option 3 permits communications but simply requires disclosure of all of them, treating them as public comment.

Options 2 and 3 both bracket an exclusion for communications with Congress, the federal judiciary, probation officers, the Bureau of Prisons, the DOJ’s Criminal Division, and the Federal Defenders. The exclusion would thus carve out many repeat players in federal sentencing policy and leave the disclosure obligation to fall mostly on communications with advocacy groups, academics, and industry. The definition also reaches only communications to commissioners, not to staff, with an issue for comment on whether to extend it.

Part E (agenda-setting). Guideline amendments typically go to Congress only once a year, so the annual priorities list largely determines what the Commission will and will not accomplish in a cycle. Current Rule 5.2 has the Commission draft the proposed priorities itself, publish those for public comment, and then publish a final list, which means the public’s role in crafting the initial priorities is somewhat limited. Part E would open the public process a step earlier by soliciting proposed priorities from the public, stakeholders, staff, and commissioners alike, publishing every submission received, and then holding an annual planning session consisting of a public hearing, a nonpublic deliberation, and a public vote. This moves the public from reacting to an agenda to helping write one, on the premise that the question of what the Commission should work on is as contestable as the question of what it should decide. Final priorities would have to be those that, viewed collectively, best further Congress’s intended purposes of the Commission (28 U.S.C. § 991(b)).

The rule would also enumerate the Commission’s full statutory toolkit, including training, research, instructions to probation officers, and recommendations to Congress, which is a useful reminder that changes to guidelines shouldn’t monopolize attention, and that the amendment cycle is not the only lever available.

Part F (disclosure of meeting materials and minutes). Before every Commission meeting, public or nonpublic, Commissioners receive a (typically huge) compilation prepared by staff: data reports, policy memoranda, opinions from the Office of General Counsel, public comments, and working drafts of amendment text. Almost none of it reaches the public. The Commission also prepares minutes only for its public meetings.

The purpose of this amendment is to “ensure transparency, facilitate public observation, and promote meaningful public engagement.” Part F could be a significant change in transparency, requiring disclosure of meeting materials for both kinds of meetings, written minutes of nonpublic meetings, and any document a majority votes to release, subject to redaction for things like deliberations, legal opinions, and confidential, privileged, or personal information. But like the proposals in Part C (giving the Criminal Law Committee and Federal Defenders a seat at the table), the exceptions for disclosure of materials could swallow the real-world transparency changes that these amendments would otherwise facilitate. Both use the language “information that is inappropriate for public disclosure,” which is in the eye of the beholder and could change each year.

Part G would make “technical and clerical changes,” like adding the Sentence Impact Advisory Group to the standing advisory groups and renaming the Victims’ Rights Advisory Group.

Part H asks the public to propose anything else, including other rule changes and specific text.

The Drone Amendment

The Commission promulgated a “drone” amendment that mostly matches what it proposed in April (which Sentencing Matters Substack covered here). In the SAFER SKIES Act, Congress enhanced statutory penalties for certain crimes involving drones and instructed the Commission to promulgate associated changes to the Guidelines Manual. The new §3B1.6(a)(1) applies a 6-level increase (the congressionally mandated floor) if the defendant is convicted of an offense to which a sentencing enhancement in 6 U.S.C. § 124n-1(c) applies (or if the parties stipulate). Subsection (a)(2) applies a 4-level increase if the offense “otherwise involved the use of an unmanned aircraft,” meaning the enhancement could apply to any offense where a drone is used. Probably trying to ward off a future circuit split, the Commission clarified that “use” excludes mere possession.

Because the Commission acted under its emergency authority, this amendment takes effect March 15, 2027 (not November 1, like most amendments).

An Update on the Composition of the Commission

Five (of seven authorized) voting Commissioners are currently serving: Chair Carlton Reeves; Vice Chairs Luis Restrepo, Laura Mate, and Claire Murray; and Commissioner Candice Wong. Two seats have been vacant since the terms of John Gleeson and Judge Claria Horn Boom lapsed.

Restrepo and Murray were confirmed to terms that expired October 31, 2025. They serve now as holdovers, and 28 U.S.C. § 992(b) lets a member continue as holdover only until the expiration of the session of Congress that begins after the regular term expires. That is the current session, which ends in late December 2026 or early January 2027. Absent confirmations, the Commission then drops to three voting members: Reeves, Mate, and Wong. Promulgating a guideline amendment requires four affirmative votes under 28 U.S.C. § 994(a).

Via Truth Social, President Trump announced the nominations of Judge John P. Cronan of the Southern District of New York and Jason Manion on June 29, 2026, both to terms expiring October 31, 2029, filling the Gleeson and Boom seats. (View their Senate Questionnaires here: Cronan and Manion.) The Senate Judiciary Committee held their confirmation hearing on August 5, 2026. Both nominations remain in committee. If the Senate confirms them before the session ends, the Commission briefly reaches seven and then settles at five when Restrepo and Murray depart. There are two further constraints on how the remaining seats can be filled: pursuant to statute, no more than four members may share a political party, and at least three must be federal judges.

All of this is relevant to the 2026 proposals. While the Commission needs four affirmative votes to approve a formal amendment to a sentencing guideline, changes to the Commission’s Rules of Practice and Procedure need only a majority of commissioners then serving.

Comment

The proposed Rules amendments and the accompanying issues for comment are open for public comment through October 26, 2026. As always, you need not confine your comments to the published options. You can propose revised language, new language, or new options, and Part H expressly invites structural proposals the Commission did not think to ask about.

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About two months ago, the U.S. Sentencing Commission released a preliminary report of sentencing data for the first half of Fiscal Year 2026 (FY2026). The report provides a look not just on what’s happening with sentencing in the federal courts, but also more generally with what’s happening to federal criminal prosecutions. And as with many Commission reports, this one tells many stories.

One story is that although sentencings in the first half of FY2026 — 32,586 — are about 6% above the same period of the last full year of the Biden Administration — 30,880 — as we noted in an earlier Substack essay, the composition of the federal criminal docket has shifted sharply back toward immigration cases and away from drug cases. The FY2026 Q2 data largely reflect the same focus as in the last year of the first Trump administration, FY2020. A second story is that the relatively small increase in the national case number hides significant geographic changes underlying it: 62 of the 94 districts saw their caseloads fall as a smaller group of border districts — just three — saw theirs surge. Some of the changes in the districts were modest. But others deserve closer attention. The sharpest example may be the reduction in the traditional high white-collar dockets of the New York City area, SDNY, EDNY, and New Jersey, whose combined first-half caseload has fallen 32% compared to the same period in FY2024, to near-pandemic levels, and to its lowest share of the national docket in a decade.

The Changing Shape of the Docket: A Modest National Rebound and a Return to an Immigration-Centered Docket

This is a comparison of the overall number of persons sentenced in the first two quarters of FY2026 compared with the first two quarters of the last full year of the Obama II, Trump I, and Biden Administrations.

First-half federal sentencings rose from 34,703 in FY2016 during the Obama II Administration to a peak of 39,800 in FY2020 during the Trump I Administration (just before the pandemic hit). They then fell to 30,880 in the last year of the Biden Administration, and have now rebounded to 32,586 in the first half of FY2026, about 6% above FY2024. Importantly, the 32,586 sentencing is still well below the FY2020 peak and even below the last year of the Obama Administration. On volume alone, the change since FY2024 looks modest.

As we reported in a Substack essay following the release of the FY2026 Q1 data, there has been a sharp rise in the number of criminal immigration cases brought by the current Administration.

Here is a graph of the percentage of immigration, drugs, and firearms defendants sentenced in the first two quarters of FY 2016, 2020, 2024, and 2026.

Immigration’s share of the docket moves with the change in administration: 29% in FY2016, 43% in FY2020, 29% in FY2024, and 41% in FY2026. Drug cases move inversely (32% → 25% → 30% → 22%). In its mix of crime — if not its overall size — the FY2026 docket looks much like FY2020.

Here is a table of the crime type of the cases sentenced in the first two quarters of FY 2016, 2020, 2024, and 2026. Notice that of the “Big Four” crime types — immigration, drugs, firearms, and fraud/theft — fraud/theft cases show a unique pattern: the percentage of fraud/theft cases showed a dramatic reduction during Trump I, didn’t much recover during the Biden Administration, and has fallen further still during Trump II. We’ll see if the creation of the new Fraud Division in the Justice Department and the recent announcement by its Assistant Attorney General of its priorities moves the needle on fraud/theft cases going forward or if it’s just a gaslighting exercise.

The Geography of the Docket: Significant District-Level Churn

While the national first-half caseload grew by +1,706 cases between FY2024 and FY2026, that growth turns out to be the result of offsetting changes in the districts. Sixty-two of the 94 districts saw their caseloads fall — a combined loss of 3,023 defendants sentenced — while 31 district caseloads grew, adding a total of 4,729 defendants sentenced. The gross movement across districts (7,752 cases) is more than four times the net national change, and it turns out that increased enforcement is being driven by a handful of border districts with reduced enforcement for much of the rest of the country.

Here is a figure that depicts the districts with the largest change in the number of cases sentenced in the first two quarters of FY2026 compared to FY2024.

The largest absolute increases are all Southwest border districts (SDTX +1,532, WDTX +1,185, DNM +909) — though even that is not uniform, as the Southern District of California (−189) and the District of Arizona (−104) fell. The largest declines came in a scattered set of non-border districts, led by Oklahoma Western, Texas Eastern, and the New York City-area courts.

The Fastest-Changing Districts, in Ten-Year Context

Ranking districts by a simple two-point comparison can be misleading. A more meaningful analysis, shown below, looks at a ten-year period for Q2 data. For the district of New Mexico, for example, the dramatic rise from FY2024 to FY2026 is a rebound from an even larger decline between FY2020 and FY2024, but doesn’t reach the numbers of FY2020 or even FY2016, the last year of the Obama Administration.

Here are ten-year graphs of the number of cases for the districts with the largest percent increases in first-half cases from FY2024 - FY2026.

Among the declining districts, the FY2026 declines in Oklahoma Western, Oklahoma Northern, and D.C., were largely a reversion from an unusually high FY2024. Yet, there are many important questions raised by some of the other districts, like Georgia Southern and Nevada, which both show low numbers of sentencing compared to their ten-year history.

And here are the ten-year graphs —

The Collapse New York City-Area Docket

Perhaps no set of districts illustrates the hidden geography of changes to the federal docket better than the federal courts of the New York City area: the Southern District of New York, the Eastern District of New York, and the District of New Jersey. These districts traditionally are among those that focus most on white-collar cases: in FY2024, fraud/theft/embezzlement made up 26% of SDNY’s cases and 20% of EDNY’s (versus 9% nationally), while immigration was almost absent (2–6%, versus 29% nationally). They are, in many ways, the mirror image of the border docket.

Here are graphs of the number of persons sentenced in the first two fiscal year quarters of the last 10 years in the New York City-area districts:

Sentenced defendants in all three districts have fallen sharply. In SDNY and EDNY, the numbers are near their pandemic lows. Their combined first-half caseload dropped from 1,333 in FY2024 to 905 in FY2026 — a 32% decline, and 37% below their FY2016 level. As a share of the national docket, the three districts have fallen from roughly 4.1–4.3% through the 2010s to just 2.8% in FY2026, their lowest in the decade.

Here is a table with a little bit more detail, by crime type, of the cases sentenced in the three New York City-area districts in FY2024. [The Commission’s Q2 FY2026 report includes each district’s total persons sentenced (Table 2) but not a breakdown of each district’s caseload by crime type, and no FY2026 dataset has been released.]

Conclusion

The Commission’s second-quarter FY2026 data release invites a simple reading — federal sentencings are up modestly from the last Biden year — but that reading misses much of what is actually happening across the country. The first-half caseload is only about 6% above FY2024 and still below the FY2020 recent peak. The composition of the caseload has swung sharply back toward immigration (nearly 41% of cases, up from 29%) and away from drugs. In both its size and its mix, the early-FY2026 docket looks far more like the last year of the first Trump administration than like FY2024. The national totals, in other words, describe a docket returning to a greater immigration-centered focus after a four-year interruption.

The other interesting story is one of geography. The near-flat national number is the net of significant offsetting changes beneath it: 62 of the 94 districts saw their first-half caseloads fall while a smaller group of border districts surged. Federal enforcement is now focused more on the Southwest border districts and less for much of the rest of the country. Nowhere is that clearer than in the traditional white-collar dockets of the New York City area. The Southern and Eastern Districts of New York and the District of New Jersey — courts where fraud and drug cases usually dominate and immigration cases are small — have seen their combined first-half caseload fall 32% since FY2024. Beneath a relatively steady national number, the federal criminal docket — and its geography — is being quietly but significantly remade.

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Sources: U.S. Sentencing Commission 2nd-Quarter FY2026 Quarterly Data Report (preliminary, through March 31, 2026); USSC Individual Datafiles FY2016–FY2025 (first half, Oct–Mar). District-level FY2026 counts are from the report’s Table 2.

As Director of Policy at LPP, Adrian is a legislative strategist and policy analyst who works both to inform policymakers and shape policy. Adrian has served as a policy consultant and technical assistance provider in over 20 states, with a focus that includes state-initiated record clearance and sentence modification laws. He has been appointed to numerous state task forces, served as a policy consultant to multiple governors, and helped pass over a dozen criminal justice-related bills nationwide. Adrian’s work centers on bringing together different communities and stakeholders to develop a roadmap that drives toward common policy goals.

We’re grateful that Adrian is joining us to share one of his policy achievements that has lessons for others working on second-look sentencing.

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Adult-use cannabis is now legal in 24 states, and more than half of the country’s population now resides somewhere where cannabis is legal to access. Even at the federal level, progress, if not reform, has not completely stalled. Sure, cannabis reform has run into the same congressional inertia that has stalled many other big-swing policy ideas. But the Trump Administration’s efforts at rescheduling cannabis has actually begun, and we are currently awaiting a final ruling.

As more and more states begin to reclassify or outright abolish criminal penalties for cannabis, adult-use legalization presents an opportunity to create a dedicated pathway for release from the consequences of past cannabis convictions. State-initiated sentence modification is a mechanism that eschews the strict compliance mandated by parole and rather flows through the court. It differs from traditional second-look sentencing, which often relies on a time-based mechanism for eligibility, i.e., the individual must have served a percentage of their sentence to be considered eligible. It is also separate and distinct from prosecutor-initiated resentencing because state-initiated resentencing does not require the prosecuting agency’s consent to initiate the process.

Instead, state-initiated sentence modification tasks the state with identifying individuals eligible for relief, notifying them, and automatically docketing their cases for review and reconsideration. Unlike other second-look laws or prosecutor-initiated procedures, the primary goal of state-initiated sentence modification is to provide relief for individuals who are still serving a term of incarceration or supervision for offenses that have been legalized or reclassified as lower-level offenses to ensure no one is deprived of liberty for conduct that the government has changed its mind about enforcing.

This July, SB62/HB26, one of the most comprehensive state-initiated sentence-modification laws in the country, took effect in Virginia. The new law creates a state-initiated process to automatically docket individuals currently incarcerated or serving a term of supervision based on a qualifying cannabis-related offense for potential reduction and release and may result in eligibility for record clearance under the Commonwealth’s newly enacted scheme for criminal record relief.

The bill also extends relief to individuals whose sentences were enhanced by a qualifying cannabis-related offense, including individuals adjudicated as juveniles, and requires legal representation for individuals found to be indigent during their initial court proceedings. Importantly, the law does not require a petition to initiate the resentencing process; it is estimated to impact more than 1,100 people across the Commonwealth. In a state with essentially no parole, this law establishes a review process for a class of individuals who may have few other options for post-conviction relief.

Virginia’s new law will begin to correct one of the most glaring failures of legalization: the fact that states have changed their laws, built legal markets, and monetized cannabis use, all while people remain behind bars or under supervision for conduct that is no longer treated as a crime.

Some opponents of the law had argued that it takes discretion away from judges by reopening old cases without regard for public safety. As someone who was deeply involved in drafting this bill, let me be clear: this is not the case. Virginia’s law simply gives eligible people a chance to go back before a judge and ask whether their sentence still makes sense in a state that has already decided cannabis should be legal and regulated as a consumer good.

More states should follow Virginia’s lead because legalization without resentencing leaves the deepest injustice untouched. Repair must follow legalization, and some lessons can be learned from Virginia’s policy that can help other jurisdictions figure out how to implement their own version of state-initiated sentence modification.

The First Step is Data

States cannot begin developing policies to effectuate relief for individuals incarcerated or serving a term of supervision post-legalization without first conducting research.

Cannabis-specific interactions with law enforcement have been difficult to ascertain because of the various ways in which arrests related to cannabis have been historically recorded. These factors include, but are not limited to: the differences across jurisdictions in record-keeping requirements and in how cannabis-related offenses are denoted; whether a jurisdiction has criminal statutes pertaining specifically to cannabis or if cannabis-related offenses are covered under more general controlled-substance statutes; whether an individual is charged with a cannabis-related offense at the federal, state, or local level; whether a cannabis-related offense with aggravating factors is charged as a single offense or as one count in a multi-count indictment (i.e., an individual arrested for a cannabis-related offense while in possession of a firearm may face a separate weapons charge or a more punitive sentence if convicted); and whether the offense that the individual has been charged with has been downgraded or reclassified to a lower offense by the state’s legalization law.

Consequently, determining an accurate estimate of the number of people currently incarcerated or proceeding through the criminal justice system for cannabis-related offenses is inherently difficult. However, unlike other types of criminal justice reforms, state legislatures explicitly acknowledge that once-proscribed conduct is not inherently criminal when they decide to legalize or decriminalize adult-use cannabis; thus, states should be compelled to conduct the necessary research to obtain a proper accounting of the number of individuals who may be incarcerated or serving a term of supervision post-legalization.

To be sure, acquiring this type of data will require querying multiple state databases, and in states that have limited enumerated drug offenses that are solely for cannabis, it will require some creativity. For example, Pennsylvania’s criminal statutes do not provide for many cannabis-centric charges; instead, drug offenses are associated with the substance’s Drug Schedule; thus, cannabis offenses in Pennsylvania are broadly charged as a Schedule I offense, which makes it difficult to know the substance associated with the conviction since Schedule I includes additional substances beyond cannabis. Although adult-use legalization has not yet passed in Pennsylvania, the only adult-use legalization to have passed out of the lower chamber includes provisions for state-initiated resentencing and record clearance. AB 1200 would task the Commonwealth’s Drug Identification Lab with submitting a report to law enforcement agencies that includes all lab tests that detected cannabis, so law enforcement agencies can cross-check that data with their own arrest data to determine the potential population of eligible individuals for retroactive relief.

Model Policy Components

Virginia’s new law was largely modeled after California’s comprehensive cannabis retroactive relief law, AB 1706. California’s law bundled record clearance with sentence modification and successfully secured a resolution in 95% of eligible cases. In total, under California’s law, more than 200,000 cases were reviewed for dismissal, redesignation, or record clearance. In a state with incredibly limited parole eligibility, a similar outcome in Virginia could create a viable pathway home in a correctional system with limited relief options.

Although California and Virginia’s retroactive relief laws differed in scope, they shared core components. These provisions should be considered model policy components to ensure a retroactive relief law can be implemented with fidelity.

State-Initiated Procedure: The process should be done on behalf of the individual without the need for a petition.

Petitions are cumbersome and, as the research on petition-driven record clearance has demonstrated, rarely used. Ensuring that sentence modification is state-initiated is key to implementing the law with fidelity. As runners staggered along the starting line on a track, each state is in its own unique lane, which makes it difficult to recommend a blanket copy-and-paste model policy; however, as setbacks in the implementation of Missouri’s state-initiated record clearance, or the backlog of 98,000 felony cases in Minnesota that must be reviewed by a board, demonstrate, there are broad best practices that should inform and guide the development of state-initiated procedures like sentence modification.

Comprehensive Eligibility Scheme: Eligibility should be broad and clearly defined.

To develop a provision that can be implemented with fidelity, it’s crucial to provide clear statutory language that includes the specific code section violations that should be eligible for relief. In Virginia’s law, those are listed as

A person who (i) was adjudicated delinquent or convicted of a felony offense involving the possession, manufacture, selling, giving, distribution, transportation, or delivery of marijuana in violation of § 18.2-248, 18.2-248.01, 18.2-248.1, 18.2-255, 18.2-255.2, 18.2-256, 18.2-257, 18.2-258, 18.2-258.02, 18.2-258.1, 18.2-265.3, or 18.2-474.1 committed prior to July 1, 2021;

Clear Guidance and Limited Discretion: A presumption for relief, the discretion for denial

A state-initiated sentence modification law should mandate that all cases identified as eligible are automatically docketed for a hearing. The law should seek to make clear that the hearing is intended to provide some form of sentence modification, such as a downward departure from the sentence originally imposed, or a reduction in sentence to time served. However, the court should retain the ability to disqualify eligible individuals on the record. Virginia’s law includes language to this effect.

Upon a hearing for modification of a sentence pursuant to this section, the court shall consider that marijuana has been legalized, and shall reduce, including a reduction to time served, vacate, or otherwise modify the person’s sentence, including removing such person from community supervision, unless the Commonwealth demonstrates it would not be compatible with the public interest to do so. Any modification of sentence shall not exceed the original term imposed by the court.

Proactive Provision of Counsel: To the extent possible, ensure representation for eligible individuals

Since the intention of a state-initiated sentence modification law is to conduct a hearing, it is recommended that the law incorporate a provision to ensure individuals who were deemed eligible for court-appointed representation during their initial proceedings are extended court-appointed representation for the sentence modification hearing.

Virginia’s law incorporates this recommendation by ensuring that individuals found indigent during their initial proceedings are again entitled to counsel, and that other individuals may petition for the assistance of counsel.

Transparent Deadlines: Establish enforceable timelines for various stages of the resentencing process.

Clear and enforceable timelines included in statute will help ensure that each state agency responsible for implementing the law has clear expectations for the functions required to implement the law. Deadlines also help ensure accountability, giving lawmakers and other stakeholders a degree of oversight over the law’s implementation. Virginia’s law includes several different timelines that are expressly enumerated, including:

Deadline — Action Required

July 1, 2026 — Statute takes effect; eligibility measured as of this date

Sept 1, 2026 — Statutory deadline for DOC/jails/DJJ to determine eligible individuals and begin notice

Oct 2026, onward — Circuit clerks notify chief judges within 30 days of receiving agency lists; hearings begin scheduling

Jan 1, 2027 — Statutory deadline for hearings involving cannabis-only cases

Apr 1, 2027 — Statutory deadline for hearings involving co-mingled cases (cannabis plus another offense)

2027–2029 — Outcome tracking, denial review, and reporting

July 1, 2029 — Statute sunsets

What Comes Next

It is easy to overlook that adult-use cannabis laws have created an opportunity to take the equivalent of an MRI of the criminal legal system. Virginia’s new law is the latest example of legislation that is specifically designed to correct or ameliorate the harms caused by cannabis prohibition. While America’s stance on cannabis has mellowed significantly since the War on Drugs began during the Nixon Administration, laws that address the criminal charges, arrests, convictions, and other consequences associated with conduct that legalization has either downgraded to a lower-level penalty or eliminated outright have only recently gained steam. Since 2018, 13 of the 14 states that have legalized cannabis have included criminal record-clearance policies. Since 2021, all these policies have been state-initiated rather than petition-based, including Missouri’s. However, sentence modification, especially a state-initiated model, has not kept pace, even though the public largely agrees that cannabis legalization should not outpace relief for its consequences. In a poll conducted by the ACLU, 82 percent of respondents agreed that when laws change, people convicted under outdated laws should have a chance to come home through clemency.

States across the country have begun to reconsider the legality of other substances. A few states have already legalized access to certain psychedelic substances, while at least a dozen states, including Texas and Indiana, have dedicated state resources to study and advise on the issue. Retroactive relief laws, including state-initiated sentence modification, can and should also grow in tandem.

Stephen Miller, the White House Deputy Chief of Staff for Policy, was more specific. Miller called for “strict, clear, mandatory minimums" for fraudsters, who in his view should face “a very substantial prison sentence.” The rationale he offered was general deterrence, pure and simple: “That change alone would be a watershed for fighting fraud because it would mean that the Department of Justice would be able to, through prosecuting a few hundred or thousand cases in a year, be able to chill the criminal conduct of millions.” He also suggested the American public would fully support severe penalties.

Miller’s assertions about the lack of serious penalties for fraud simply don’t hold up to Sentencing Commission research and data. They don’t hold up to President’s Trump’s own statements about fraudsters he has pardoned. Beyond that, though, it is rich for an Administration so steeped in corruption and self-dealing — and for a President who has pardoned so many of his friends and supporters who have committed fraud and theft at grand scale — to be diverting attention from that corruption with calls for longer prison sentences for fraud. Mandatory minimums have, of course, been the reflexive tool for decades for politicians who want to demonstrate that they are serious about addressing an acute crime problem and who are keen on gaslighting the public.

Mandatory minimums have been the focus of criminal justice reformers for decades as well. The calls for reform have focused both on the impact of mandatory minimums on incarceration terms and how they have led to substantial increases in the federal prison population, but also on the impact mandatory minimums have had on the constitutional right to a jury trial. Earlier this year, in Hunter v. United States, Justice Neil Gorsuch confronted the Supreme Court’s role in undermining the jury trial right by pointing out how the modern justice system relies on coercive plea practices that also shield illegal sentences from appellate review:

In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. . . I . . . write separately to outline how we got here and some of the work still ahead.

Confronting the “work still ahead” means in some way addressing mandatory minimum statutes, for they are a key lever pushing defendants to give up their jury trial rights and enter plea agreements. Many reformers — especially the National Association of Criminal Defense Lawyers — have documented how mandatory minimums can create a “trial penalty” and have, in part, led to over 97% of federal defendants entering guilty pleas and into plea agreements to avoid longer prison sentences.

While judges, civil rights organizations, and legal scholars have long condemned these laws, mandatory minimums are still frequently justified by policymakers in the name of the public and public safety. With the Administration calling for new mandatory minimums, an important new article has just posted on SSRN, Mandatory Justice, by University of Minnesota Clinical Law Professor JaneAnne Murray.

In it, Murray takes on the claim that mandatory minimums are favored by the public. She challenges the conventional political narrative that mandatory penalties are popular by presenting data from five original national surveys spanning the 2016, 2018, 2020, 2022, and 2024 election cycles. Her findings show a growing public consensus against mandatory minimums. And as importantly, Murray also finds troubling evidence that anti-Black racial resentment is a big driver of what public support exists for mandatory minimums.

The Historical Context and Structural Impact of Mandatory Minimums

Murray grounds her study in federal sentencing law and practice. Federal mandatory penalties expanded dramatically in the late 20th century. Driven by overwhelming public concern with drug use and trafficking — including following the 1986 cocaine overdose death of University of Maryland basketball star Len Bias — Congress bypassed much of the traditional legislative process to rapidly enact harsh drug sentencing laws in the 1980s. Those laws tied mandatory penalties to the drug type and quantity involved in the case rather than on an offender’s role in the drug enterprise.

Counterintuitively, this quantity- and drug-type-based structure led to federal law enforcement targeting many easily accessible street-level couriers and dealers and few kingpins, Murray documents. Combined with the 100-to-1 crack-to-powder cocaine disparity, the policies dramatically increased the federal prison population, which grew by 850% between 1980 and 2020 and also led to stark racial disparities in federal sentencing.

Murray also argues that mandatory minimum sentences decimated the adversarial trial process itself. By threatening often decade-long mandatory sentences if a defendant went to trial, prosecutors hold tremendous leverage during plea negotiations. As a result, the number of federal trials has fallen dramatically over time, dropping from 15% of cases in 1968 to an all-time low of 1.7% in 2021. Judges are forced to impose what former federal judge John Gleeson termed in United States v. Vasquez “small dose injustices:” mandatory five- or ten-year terms on low-level, first-time offenders, or those with significant mitigation.

Empirical Findings: The Public Voice Across Five Election Cycles

To test whether the public actually supports these rigid outcomes, Murray designed a survey experiment using real-world criminal vignettes (modeled after actual federal drug cases like Vasquez). With a sample size of 3,552 respondents obtained from an Internet opt-in panel, the survey showed broad support for judicial safety valves when mandatories would otherwise apply. Over 60% of respondents in 2016 opposed the mandatory imposition of five- and ten-year sentences, preferring instead that judges be given the discretion to depart downward in extraordinary or mitigating circumstances.

In later election cycles — 2018 to 2024 — Murray presented respondents with questions to tease out their attitudes to inflexible mandatory minimums. Support for judicial discretion grew steadily over time. By 2022, 77% of respondents supported granting judges the discretion to set aside mandatory minimum sentences. This supermajority held steady at 75% in the 2024 presidential election cycle. Across all five election cycles, the results consistently contradicted the belief that the American electorate demands mandatory minimum sentences.

Figure 3. Support for Judicial Discretion Over Mandatory Minimums, by Year.

The most striking finding across all five surveys, though, was what Murray calls “the psychometric predictor of opposition to judicial discretion.” Murray found that in every election cycle, racial resentment — anti-Black prejudice — was the single strongest and most reliable predictor of why a respondent favored mandatory minimums over judicial flexibility.

For each election cycle, Murray ran a logistic regression: a model that estimates the probability a respondent chooses one of two options, here judicial discretion (coded 1) over a mandatory minimum (coded 0), given everything else the survey knows about that respondent. She ran it twice for each year. The first model (“Model 1”) includes only demographics and politics — race, gender, age, education, family income, party identification, and ideological self-placement. The second (“Model 2”) adds two psychological dispositions: authoritarianism, measured by a particular research standard, and racial resentment, measured by the scale that has been political science’s conventional instrument for contemporary racial attitudes. Racial resentment is intended to capture a belief that the circumstances of Black Americans reflect insufficient effort rather than historical and structural disadvantage.

The figures below are “dot plots,” and they are read left to right. Each row is one variable. The dot is a point estimate — the change in a respondent’s likelihood of supporting judicial discretion as that variable moves from its minimum to its maximum value: from strong Democrat to strong Republican, say, or from the least racially resentful to the most. The horizontal line running through each dot is the 95% confidence interval, the range within which the true effect most probably lies. The dashed vertical line is zero: no effect. If a variable’s confidence interval clears the line, the effect is statistically significant. Dots to the left of zero identify the variables that reduce support for judicial discretion. And because each figure shows Model 1 and Model 2 side by side, it also shows what happens to every other variable once the psychological dispositions are brought into the equation.

Change in “Predicted Probability” on Support for Judicial Discretion,

2018-2022 (in which Model 2 includes the additional factors of authoritarianism and racial resentment)

Figure 4, 2018

Figure 5, 2020

Figure 6, 2022

Three things seem to emerge from the results, and they hold across 2016, 2018, 2020, and 2022. First, racial resentment is the furthest-left dot in every Model 2 panel, and its confidence interval never touches zero. Translated into probabilities, the gap between the least and the most racially resentful respondents was .34 in 2016, .24 in 2018, .40 in 2020, and .30 in 2022. Put more simply, in 2020, the most racially sympathetic respondents were predicted to support judicial discretion at a probability of .87, and the most racially resentful at .47. Nothing else in the model moves respondents nearly that far.

Second, party and ideology look like the whole story right up until racial resentment is considered. In Model 1, partisanship and ideological self-identification are the significant political predictors, which is the result one would expect and the one commentators routinely report. In Model 2, they shrink, and frequently disappear. Murray argues that what presents itself as a partisan disagreement about sentencing policy is, on this evidence, substantially a racial attitude traveling under a partisan label.

Third, the demographic variables do little to explain a respondent’s choice. A respondent’s own race, gender, education, and income are, with scattered exceptions, statistically indistinguishable from zero across the four cycles. The finding is therefore not that Black Americans favor judicial discretion while white Americans oppose it. It is that racially resentful Americans — of whatever race, income, or level of education — favor mandatory minimums, and that this single disposition predicts their position better than anything else the surveys know about them.

Key Policy and Legal Implications

From her findings, Murray outlines five distinct areas where she thinks these findings should reshape American criminal justice policy:

Eighth Amendment Jurisprudence: Under the Supreme Court’s “evolving standards of decency” test, courts evaluate objective indicia of societal norms, including polling data. These multi-year national surveys provide empirical evidence that society no longer supports non-discretionary prison minimums, offering courts a basis to strike down mandatory statutes as disproportionate.

Legislative Reforms: Bipartisan efforts to repeal mandatory minimums or introduce statutory “safety valves” (allowing judges to bypass statutory floors) align directly with public consensus.

Prosecutorial Policy: Because prosecutors invoke mandatory minimums in the public’s name, these findings undermine the justification for “charge-maximization” policies. Department of Justice and state prosecutorial guidelines should mandate that prosecutors exercise caution in charging statutory minimums (akin to the Holder and Garland charging memos).

Executive Clemency and “Second Look:” Presidents and state governors can rely on clear public support to expand executive clemency programs and legislatures should enact “second look” legislation, retroactively shortening sentences imposed at the height of the mandatory minimum era.

Restoring Individualizing Sentencing: The surveys demonstrate that the public values individualized justice, rehabilitation, and contextual nuance over automated, one-size-fits-all punishment.

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Murray’s article takes on the longstanding political belief that rigid mandatory minimum sentences represent the democratic will. She shows that three-quarters of the American electorate favors judicial discretion over mandatory sentences and shows that support for mandatory penalties is largely rooted in racial resentment. The article is an important legal, empirical, and moral contribution. With the Trump Administration now calling for new mandatory minimum penalties, it comes just at the right time.

Prior to joining the Commission, Matt worked for close to two decades at the National Center for State Courts (NCSC), where he collaborated with judges, prosecutors, public defenders, probation departments, and court staff throughout the United States and across the world. While at NCSC, he focused on the development of resource assessment models, strategic planning, program evaluation, the implementation of court specific performance measures, and improving the rule of law, and worked on projects in Bulgaria, Canada, Kosovo, Serbia, Tunisia, and the West Bank. Matt holds a doctorate in political science from Michigan State University.

We are thrilled Matt is contributing to the Substack this week and especially that he has chosen to interview John Kramer, who has been on the front lines — and a leader — of the sentencing reform movement from the start.

-Jonathan

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Nearly 50 years ago, Minnesota and Pennsylvania launched an experiment that would reshape criminal sentencing. Each state undertook a process to develop a sentencing commission and sentencing guidelines designed to rein in unfettered discretion and bring more consistency, fairness, and proportionality to the sentencing process. In Pennsylvania, Dr. John Kramer was one of the pioneers who helped make that vision a reality and helped launch a new era of sentencing.

During his career, John had many experiences as a practitioner, academic, administrator, and policy expert that greatly influenced his views on the criminal justice system and sentencing. He served as a correctional officer for the Ohio Department of Rehabilitation and Corrections, a juvenile parole officer in Cedar Rapids, Iowa, a professor of criminology at Mankato State University and at The Pennsylvania State University, Executive Director of the Pennsylvania Commission on Sentencing, and Staff Director of the United States Sentencing Commission. His work and his legacy helped lay the foundation for a more just system of sentencing that has been replicated across the United States and influenced sentencing policy and practice around the world. I am grateful to share excerpts from a recent conversation I had with him about his career, the early days of sentencing reform, what it took to build sentencing guidelines, and what those lessons mean for sentencing commissions today.

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Matt: How did you get involved with sentencing reform in Pennsylvania?

John: In 1973, I moved to Pennsylvania to be a professor at Penn State University. And in 1975, I received a grant to study sentencing. This led me to be part of a panel that was opposed to mandatory minimums. On the panel were Judge Richard Conaboy (first chair of the Pennsylvania Commission on Sentencing and later Chair of the U.S. Sentencing Commission) and State Representative Anthony Scirica (an original Commission member and future federal district and appellate court judge). Despite my work in this space, I hadn’t been paying any attention to the legislature creating a sentencing commission. In March of 1979, I got a phone call from someone at the Pennsylvania legislature saying that Michael Tonry put my name in as possible executive director for the Commission and asked whether I would be interested. I said “sure!”

When I was offered the job to be executive director, I was serving as the department chair, and when I accepted, I resigned as chair. This was an important separation from the university, and they allowed me to take a three-year leave of absence from the university to focus on the commission. I lived in Harrisburg during the week and would drive back to State College on the weekends. This got tiring and after several years, I told the Commission that I was going to resign. They wouldn’t let me resign and the Commission responded, “why can’t we move the Commission to State College.” Subsequently, I was able to arrange for the Commission to be relocated to Penn State.

Matt: What was the motivation for the development of the commission and guidelines?

John: To begin, I think that the proposal for mandatory minimums in 1976 that would have increased prison populations significantly started the conversation. And the following summer there was a special session on sentencing in Pennsylvania. It was comprised of panels talking about different issues of sentencing. Coming out of this was the perceived need for a counter to the mandatory minimum movement, and sentencing guidelines were a good direction to consider. While mandatory minimums were about harsher sentences, the guidelines were focused on issues of equity and proportionality. That led to Act 319 of 1978 that created the sentencing commission.

Matt: Was the issue of disparity a primary motivator?

John: There was no groundswell of vocal concern or frustration with disparity. The bigger concerns at the time were that some jurisdictions [Philadelphia and Pittsburgh] were too lenient and out of step with considerations of tougher sentencing. Deterrence and incapacitation were not the drivers either. Those came up in the mid-1980s and were magnified by a report from the Department of Justice in the 1980s that the cost of crime is much greater by leaving individuals who offend on the streets than putting them in prison because they go out and commit more crimes. This was sent to every legislator in Pennsylvania. The message was lock them up! The Commission responded that these federal arguments would create an ineffective, unfair, and expensive justice system.

Matt: What was it like once you were hired by the Commission?

John: In 1979, the Commission was the new kid on the block. We had no relationships, no office, and only $93,000 for a budget. I remember walking up the steps of the Capitol and thinking “what in the hell do I do now?” I didn’t really know anyone. As an undergrad, I had studied and focused on organizations, so one of my first things was to build an agenda for the Commission beyond the mandate to write guidelines. I needed to define where the Commission fit in with the state agenda process and with other state agencies. I tried to build a network of connections that fostered respect, trust, and prestige and ensure that other agencies viewed us as working with them to build a better criminal justice system by finding opportunities to move the system forward.

Matt: Were there any advantages to being a new agency?

John: In the beginning, no one knew who the sentencing commission was and they didn’t really know much about what sentencing guidelines were. So, this provided a wonderful opportunity for staff to help inform the legislature and also judges. I wanted the Commission to be a non-threatening, valuable resource to other agencies in Pennsylvania. I viewed things as one big system where the actions of one agency (Department of Corrections, Parole Board) could significantly affect costs and community safety.

At that time there were several pressure points in the system. The number of people in prison was increasing, attention was turning to the high costs of incarceration, and in the late 1980s there was a riot at the Camp Hill facility (state prison). These circumstances allowed the Commission to be creative and incorporate things like intermediate punishment into the guidelines.

Matt: How were the original guidelines created?

John: We were given a very tight timeline to create guidelines and at that time we did not have good sentencing data. So, we had to write prescriptive as opposed to descriptive guidelines, because we had no way of describing current practice. To accomplish this, we went through an exercise of rank ordering offenses. The Commission held a weekend retreat and members reviewed actual cases. They read pre-sentence reports and then determined the appropriate sentence. These were then compared to what the judge did in that case. Initially the Commission wanted to use six offense gravity score categories that corresponded with the six offense grades (misdemeanor one, two, three; felony one, two, three) but it was clear that when they were going through these example cases there were greater differences. At the time felony one included all burglaries, robbery, rape, murder three, and no one felt good putting those into one bucket and saying they were all equal. We ended up with 10 categories. We knew this was overly simplistic. But it allowed judges to have more discretion to consider culpability, victimization, and the seriousness of the injury. In the end, we were criticized for having ranges that were too wide. But we felt relatively wide ranges were necessary to allow for reasonable judicial discretion to reflect the wide ranges of behaviors falling under the statute.

Matt: What is the role of data for sentencing commissions?

John: Over the years, we purposely built our data capacity and made sure it was robust. Our data has become the core for evaluating what we are doing and how to make things better. It has also been used to alleviate uninformed perceptions held by individual judges and legislators. The Commission is now viewed as having some of the best data in the state and the country. It is remarkable to reflect on how many research articles have been published in major academic journals using PCS data.

Matt: What is the value of sentencing commissions and guidelines?

John: Commissions are able to bring to the forefront questions about justice. Our policies and practices, that impact the way that we treat people who violate our norms and our laws, are a reflection of who we are as a society. And these values are embedded within the guidelines. The guidelines provide a framework that goes beyond the individual court communities that exist in each county and create a counterforce to other perspectives that help balance and hopefully create more justice. And the fact that they are out there allows a judge to say “Well, the Commission has suggested this, but I think . . .” The advisory nature of the Pennsylvania guidelines preserves individual discretion by allowing a judge to depart from the guidelines and articulate a reason. They force people to think about what they are doing.

Matt: How did you get involved with the United States Sentencing Commission?

John: In 1994, the chair of the U.S. Sentencing Commission was leaving, and they needed to appoint a new chair. Joe Biden was head of the Judiciary Committee at the time, and he called Judge Conaboy to come to Washington to be chair of the U.S. Sentencing Commission. The judge called me and said that he would only go if I went with him. So, I agreed to join him as a consultant helper to periodically work with the Commission. In 1996, I became staff director and for the second time, I tried to resign from the Pennsylvania Commission to move to go to D.C. The chair wouldn’t let me, so I held both jobs from 1996 to 1998.

Matt: How did your early experiences shape your views on criminal justice?

John: As an undergraduate at The Ohio State University, I took a class with Dr. Simon Dinitz, and I found it fascinating and it got me interested in sociology and criminology. After undergraduate, I considered going to law school at the University of Iowa but decided I didn’t want to be filing divorce settlements for the rest of my life and ended up going to graduate school. After a year of graduate school at the University of Iowa, I went back to OSU and met with Dr. Dinitz and told him “I want to get some experience, and I’d like to work in a prison.” He said “OK,” and he helped me get a job at the Ohio Penitentiary. And that was eye-opening. There were 4,800 inmates with four to a cell. I was a guard and a counselor. Seeing the conditions in this prison stimulated my later focus on the policies that created this prison population, and a desire to better understand the policies and the processes creating such unfair and ineffective environments. It set me on a course to do something different than just academics and publications.

Matt: Looking back what are you most proud of?

John: I look back and think “wow, look at what the Commission has become.” It grew from a staff of one with a budget of $90,000 to one with roughly 20 staff and a budget over $3 million. I am most proud of the Commission as a whole, not of anything that I did with the Commission. I am proud that it is a vehicle for public policy that has become a highly respected state agency. And I am extremely proud that we made things better and more fair. The guidelines helped make proportionality a central component of sentencing. The guidelines concept brought to the state a framework and emphasizes that the penalties should be proportionate to the offense and what happened. We are not perfect, but the guidelines establish a consistent framework for discussion. And as I look back I think, “Goodness gracious, I was lucky to be part of this evolving step by step process towards justice.”

Hearn said he had reached into the water out of curiosity and touched a piece of sealant that had peeled from the bottom of the basin and floated to the surface.

Twenty-nine days after Pirro’s press conference, the government’s case collapsed.

On July 31, Pirro and Assistant U.S. Attorney Michael P. Spence moved to dismiss the indictment. Their own filing conceded that the damage “was the result of a botched installation and not vandalism as initially represented” by the Department of the Interior. Documents produced only after the indictment, they wrote, indicated that the damage “was the result of flawed installation by the contractor, Atlantic Industrial Coatings (AIC), and the rush to complete the project prior to events associated with the America 250 celebration in the weeks surrounding Independence Day 2026.” The engineering record discussed in a National Park Service engineer’s June 11^th email had attributed the peeling to contractor “overspray”, and a later inspection “showed damage throughout the Reflecting Pool, even in the middle of the pool, where a vandal would not likely attempt to peel the lining.” Given all of it, the prosecutors admitted, “it is difficult to attribute the widespread damage to the Reflecting Pool to vandalism, let alone to establish that fact beyond a reasonable doubt.”

That admission is striking because it flatly contradicts what Pirro had told the public when she brought the case. Asked on the day of the indictment about pre-existing problems with the renovation, she waved the question away, insisting the government could “state and prove beyond a reasonable doubt that he caused damage and that damage is over $1,000.” The motion’s own timeline shows how little grounded that confidence was.

Prosecutors acknowledged that before seeking the indictment, they had toured the Reflecting Pool that “remained filled with water, making it difficult to observe the condition of the floor”, and that only on a later visit to the drained pool did they “immediately note[] extensive damage throughout.” Most damning is the paragraph on page eighteen of the filing. There, Pirro and Spence say that the exculpatory information “was not known to the prosecutors or the grand jury before the return of the indictment”, but that “[h]ad DOI been forthcoming with the information clearly in its possession, the government would not have sought a grand jury indictment.” They further acknowledge their “affirmative obligation pursuant to Brady v. Maryland” and the Rules of Professional Conduct to disclose such information to the defense.

In plainer terms — the government indicted a man for a felony without the evidence to support it and knowing full well that the damage to the Reflecting Pool was not the result of vandalism, as the indictment alleged. The motion to dismiss is the U.S. Attorney’s Office attempt to cover for its own failure to do the due diligence required of it before charging a person with a crime. But regardless of where in the U.S. government the full responsibility lies, it is clear that the government indicted a man its own evidence — available and “clearly in its possession” at the time the indictment was sought — shows was innocent.

Of course, the dismissal did not sit well with the President. He wants revenge prosecutions whether or not laws were actually broken. He had personally championed the Reflecting Pool renovation and repeatedly blamed its failures on vandals, regardless of what actually happened. The President does not prioritize the truth, and not surprisingly, he publicly broke with his own U.S. Attorney on Truth Social.

The President’s insistence that “the major damage was caused by VANDALS” is precisely the factual claim his own prosecutors had just told a court they could not prove. Hearn’s lawyers were quick to respond. In a statement, attorneys Norman Eisen, Mary Dohrmann, and Steve Levin said the case should “never have been brought”, and that its “dismissal today does not erase the abuse of government power in arresting and charging a patriotic American who did nothing wrong.” The government’s approach, they said, was “ready, fire, aim.”

So what happens now? Hearn’s lawyers said that the “Administration owes Mr. Hearn an apology.” But it seems to me he is owed far more than that, or should be. He was arrested, booked, publicly branded a violent vandal by the chief federal prosecutor in the nation’s capital — and the President, too — and forced to hire counsel to defend against a charge the government now concedes it should never have filed.

If criminal justice is about accountability and deterring bad behavior — and so we’re told over and again by the government — surely what must come next is more than an apology. Thirty years ago, when Congressman Joseph McDade was acquitted on bribery and racketeering charges, his colleague John Murtha thought McDade was owed something more from the government than an apology. What resulted was the Hyde Amendment, a surely incomplete and insufficient response to unjustified and frivolous prosecutions, but a first step in the right direction. The Trump Justice Department and its revenge prosecutions have shown that it’s time to revisit the Hyde Amendment and to strengthen the law.

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The Hyde Amendment was enacted in 1997 as a rider to that year’s appropriations act. Its sponsor, Representative Henry Hyde, borrowed both the idea and the language from the Equal Access to Justice Act (EAJA), the statute that lets parties who prevail against the government in civil litigation recover fees “unless the court finds that the position of the United States was substantially justified.” If such protection was “good for a civil suit”, Hyde reasoned, “why not for a criminal suit?” As it passed the House, his amendment tracked EAJA closely. It provided that a court “shall award” fees to a prevailing criminal defendant “unless the court finds that the position of the United States was substantially justified or that other special circumstances make an award unjust.” Under that version, the burden sat with the government to justify its prosecution, and any prevailing defendant could recover.

That is not the law we have, though. After the bill passed the House, the Justice Department objected that fee awards would deplete its resources and chill prosecutions, and the Senate first passed the 1997 appropriations bill without the amendment. A conference committee then rewrote it and included the revised version in the final bill.

Most importantly, the committee replaced the requirement that the position of the United States be “substantially justified” with a requirement that the position of the United States be “vexatious, frivolous, or in bad faith” before attorneys’ fees could be awarded. The committee also changed the mandatory “shall award” to a discretionary “may award”, barred defendants represented by public counsel from recovering, and shifted the burden of proof onto the defendant. The enacted text authorizes a court to award fees to a prevailing defendant “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.”

How high that bar sits has been shown in many cases since, including United States v. Shaygan. Dr. Ali Shaygan, a physician, was acquitted on all counts of a drug-distribution indictment after a trial marred by the government’s undisclosed program of secretly recording members of the defense team. Finding that the prosecutors had acted “vexatiously and in bad faith”, the district court ordered the United States to pay Shaygan $601,795.88 in fees and costs. The Eleventh Circuit later reversed the district court. The Hyde Amendment, it held, “allows an award of attorney’s fees and costs against the United States only when its overall litigating position was vexatious, frivolous, or in bad faith” — not when a prosecution is objectively supportable but individual acts of misconduct occur along the way. Because Shaygan had been indicted by a grand jury for conduct that was in fact a crime, the prosecution was “objectively reasonable”, and the court held it had “no discretion” to award fees no matter how badly the prosecutors had behaved. It read “position of the United States” to mean “the legal position of the government, not the mental attitude of its prosecutor”, and reminded litigants that waivers of sovereign immunity “are to be construed narrowly.”

Shaygan and other cases expose the gap that in the face of the President’s revenge prosecutions, should get us to act. The Hyde Amendment does nothing for a defendant whose prosecution can be dressed up as objectively reasonable — a grand-jury indictment, a statute that exists, some quantum of evidence — even where the case was brought for improper reasons or later falls apart based on outrageous government conduct. In the Hearn case, the government concedes it lacked the evidence to charge. In November 2025, a federal judge dismissed the indictments of former FBI Director James Comey and New York Attorney General Letitia James after finding that the prosecutor who brought them, Lindsey Halligan, had been unlawfully appointed — installed only after the President forced out a U.S. Attorney who had resisted pressure to charge them, and over the recommendation of career prosecutors who saw insufficient evidence. Congressional allies have sent the Justice Department a criminal referral urging investigation of Jack Smith, the former special counsel who twice indicted Trump, and prominent figures including Dr. Anthony Fauci have faced repeated public threats of prosecution. Whatever one thinks of any individual case, the pattern is part of what the Hyde Amendment was written to address and, as enacted and construed, cannot.

The damage from such prosecutions is real even when they end in dismissal or acquittal. An indictment means arrest, booking, legal bills that can run into six and seven figures, reputational harm broadcast by the government itself, and months or years of fear. Hearn was publicly accused of a violent act he did not commit; the charge was dropped, but the accusation cannot be unmade. A legal regime that lets the government inflict all of that and then walk away — so long as its case was not quite frivolous enough — offers no meaningful deterrent. Under Shaygan, even the Justice Department’s secret recording of a defense team was not enough.

This is why it is time to revisit the Hyde Amendment. The fix would not be exotic; it means at least restoring what the House originally passed. Congress could return the standard to EAJA’s “substantially justified” test, so that the government — not the wrongly accused — bears the burden of showing its prosecution was justified. It could make awards mandatory rather than discretionary when that standard is met, remove the public-counsel bar, and reach the full actions of the United States, including the pre-indictment conduct that produced the Hearn debacle, rather than only the litigating posture a court can rationalize after the fact. And more than that, it could pair fee-shifting against the government with real consequences for the individual prosecutors who knowingly bring baseless cases, since a fee paid quietly out of an agency appropriation deters no one.

Abusive prosecutions can be deterred; accountability can be achieved. But only if bringing an abusive case carries a genuine cost — to the government that authorizes it and to the lawyers who sign the indictment. Reforming the Hyde Amendment is one concrete step toward ensuring that when the government recklessly or knowingly charges the innocent, real accountability follows. It should be added to the long list of changes that ought to be made to fortify the guardrails and prevent prosecutions of personal and political opponents that subvert the rule of law.

The conference themes and agenda emanate from what’s been happening at state sentencing commissions this past year. The last six months in particular have seen state commissions reviving, reviewing, and re-ranking guideline systems. The Albuquerque gathering arrives at a moment when the state-level project of guiding sentencing courts in the exercise of their discretion has been productive but at the same time faces longstanding challenges.

The most literal answer to the conference’s “establish or revive” call comes out of Michigan, and it is the single most striking commission story of the year so far. On May 7^th, the Michigan Sentencing Commission held its first meeting since 1997 — a gap of nearly three decades. The body has an unusual institutional history. It was created in 1994, did its work, and then effectively went dark in 1997 once the legislature enacted the guidelines it had recommended, leaving the state with a sentencing structure but no standing institution to tend it.

Lawmakers reconstituted the commission under Public Acts 273 and 274 of 2024, this time as a nonpartisan advisory body housed within the Legislative Council. Governor Gretchen Whitmer named Court of Appeals Judge Christopher Yates as its chair. Yates framed the Commission’s reason for existing in the plainest possible terms: offenders with nearly identical crimes and criminal histories can wind up with dramatically different sentences, an outcome he called antithetical to the very idea of a guideline system.

What Michigan has set for itself in its first year is worth watching, because it is a catalogue of the problems that accumulate when a guideline system runs for a generation without tending. The Commission has said it will clarify the confusing “offense variable” language that has generated conflicting appellate decisions, revisit criminal-history scoring so that it better accounts for repeat offenders, adapt the guidelines to the state’s changed treatment of drug offenses and the decriminalization of marijuana, and improve the guidelines governing criminal sexual conduct. The Commission staff has obtained felony sentencing data back to 2003 from the Michigan Department of Corrections, and the focus of its work over the next year will be making a series of research presentations to the Commission that describe the accumulated problems in detail and then begin to develop policy responses to them. The membership of the Commission is deliberately broad — legislators, prosecutors, defense attorneys, and members who have themselves been incarcerated — and the Commission is required to report annually to the legislature, the governor, and the state supreme court in December.

If Michigan is the revival story, Minnesota is the story of a mature commission doing the hard work of a top-to-bottom review. The Minnesota Sentencing Guidelines Commission — the oldest such body in the country, operating since 1978 — has just completed its first comprehensive review of the guidelines in the system’s history. In a 10-to-1 vote, the commission adopted a package of changes and submitted them to the legislature; absent legislative rejection, they took effect August 1. The substance is significant, and it concentrates on the criminal-history score, the engine that drives much of the disparity the guidelines were meant to constrain.

The Commission cut the felony “decay” period from fifteen years to ten, so that older convictions drop out of the calculation sooner. It converted custody status from a component of the criminal-history score into a durational modifier, changing how the fact of being on probation or supervision at the time of an offense is counted. It eliminated juvenile points from the score altogether. And it simplified the treatment of prior DWIs and other gross misdemeanors. Taken together, these adjustments reflect a considered judgment that the criminal-history axis was in need of significant reform. The Commission has paired the changes with a run of practitioner trainings this fall, including a set of August “Lunch and Learn” sessions, a reminder that adopting a guideline change and successfully landing it in courtrooms are two different tasks.

Kansas shows the same reformist impulse, and it illustrates the conference’s second theme — better data and policy analysis. On May 19, the Kansas Sentencing Commission announced that Arnold Ventures had agreed to fund the policy component of what it is billing as the most comprehensive review of the Kansas guidelines since they were created. The funding is anticipated to reach up to $600,000 over twenty-four months, with technical assistance from the Council of State Governments’ Justice Center. Executive Director Scott Schultz and Research Director Dr. Carmen Diaz prepared the application, and the stated aim is squarely practical: to identify policy options that would slow projected prison-population growth and stabilize corrections spending, with findings timed to inform the legislature’s 2028 session.

The philanthropic-plus-technical-assistance model on display here — a national funder underwriting the analytic capacity of a state commission — is precisely the kind of capacity-building the Albuquerque program is designed to encourage. Kansas has also been minding the less visible infrastructure of its work, completing the statewide rollout of its KSApp criminal-justice filing tool across all thirty-one judicial districts and seating new commission members over the summer. The law making KSApp mandatory for all felony sentencings passed unanimously and was signed by the governor. As of July 1^st, KSApp is the statewide tool for filing sentencing pleadings, including presentence investigation (PSI) reports and sentencing and probation revocation journal entries.

The busiest commission calendars belonged to Connecticut and the District of Columbia, and both offer a useful corrective to the assumption that commission work is mostly the periodic publication of a manual. The Connecticut Sentencing Commission ran a dense schedule of full-commission, committee, and working-group meetings from January through May. In February it took up an outcomes report on Public Act 15-84 and a proposal to expand residential mental-health treatment beds; in April it turned to a substantial report on intellectual and developmental disabilities in the criminal-justice system, along with an early screening and intervention initiative. A pretrial working group met repeatedly through the spring and produced a summary report analyzing failure-to-appear rates, the pretrial detention of people charged with low-level felonies, and violations of protective orders. In June the commission adopted revised bylaws, retiring a version that had stood since 2016 — the sort of quiet governance housekeeping that rarely makes news but signals an institution taking its own structure seriously.

The District of Columbia Sentencing Commission, for its part, made several changes to its guidelines. Alongside releasing its 2025 annual report in late April and issuing a Spanish translation of its 2026 voluntary guidelines manual, the Commission ranked three previously unranked felony offenses and re-ranked three Title 48 drug offenses, moving them from the main grid to the drug grid. This is the routine but consequential maintenance work of a guideline system — deciding where a given offense sits in the matrix of seriousness.

Beneath these headline stories runs a steadier current of guideline maintenance that, in the aggregate, is its own kind of “leveling up” (perhaps better characterized as “change and continuity”). Pennsylvania spent the spring rolling out its Eighth Edition sentencing guidelines and the supporting apparatus around them, including the first volume of a new “Compendium” of reference handbooks and a refreshed set of public data dashboards covering 2015 through 2024. Utah promulgated new 2026 sentencing and release guidelines, effective in May, revised to reflect legislative changes, and published an annual accounting of how the year’s legislative session reshaped its master list of offenses — by its own count, forty-four new offenses created in a single session. Arkansas issued its 2026 benchbook, the annually revised presumptive-standards manual its practitioners depend on. None of these is dramatic on its own. Together they describe a working system in which commissions serve as the connective tissue between the laws legislatures enact and what actually happens at sentencing — translating statutes into usable grids, worksheets, and manuals.

Which brings us back to New Mexico. It spent the year modeling the analytic role the meeting will celebrate. During the state’s 2026 legislative session, the New Mexico Sentencing Commission published a bill tracker following criminal-penalty legislation, and lawmakers directed the commission to work with the Legislative Finance Committee on a method for measuring the fiscal impact of bills that change criminal penalties. That last item is quietly telling. It is a legislature asking its sentencing commission not to advocate but to count — to build the analytic infrastructure that lets policymakers see the downstream cost of a penalty change before they vote on it. That is part of the core of what a modern sentencing commission is for.

Read as a whole, the past six months suggest that the state commissions are, in fact, leveling up — some by coming back from the dead, some by rebuilding the criminal-history scores at the heart of their systems, and some by chasing the funding and analytic capacity that serious policy work requires. The commissions that will gather in Albuquerque are not a monolith; they range from Minnesota’s half-century-old institution to Michigan’s freshly resurrected one to bodies with dense committee calendars. And if the theme of this year’s meeting is an instruction, it is also a reminder that a good part of the field is already following it.

This is Figure 1 from the FY 2025 Sourcebook of Federal Sentencing Statistics issued by the U.S. Sentencing Commission this past spring. It shows visually how the federal criminal docket is dominated by cases brought and sentenced in the five southwest border districts: the Southern District of California, the Districts of Arizona and New Mexico, and the Southern and Western Districts of Texas. The figure doesn’t really do the disproportionality justice, though. In FY 2025, those five southwest border district accounted for 41% of the total number of defendants sentenced nationally, 27,455 out of 66,662.

The cases brought — and the overall case-mix — along southwest border are not typical of those in the other 89 districts across the country. It’s always seemed to me that we had two different federal criminal justice systems; the one along the southwest border and the one everywhere else. And I’ve wondered how the cases from the five southwest border districts distort the national data reported annually by the Sentencing Commission. But without any serious skills in data analysis and dataset management, I was mostly left to wonder.

No more. I asked Claude Cowork to help me with the project. My brother, who is an engineer, had given me a short tutorial on Cowork and helped me download and orient the relevant datasets and codebook from the Sentencing Commission’s website. Then I went to work.

This is part of the conversation I had with Claude:

Jonathan: The U.S. Sentencing Commission issues a Sourcebook of Federal Sentencing Statistics each year. You can find the FY 2025 version here -- https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2025/2025_Sourcebook.pdf. The Sourcebook is based on the Commission's annual dataset on each individual sentencing in the federal system. Those datasets can be found in my opafy subfolder of the parquet folder. The codebook can be found in the Downloads subfolder. There is other relevant documentation in the Claude folder (including an .md file).

Claude Cowork: Thought process

I’ll get oriented with the materials you’ve described before we dig in.

Ran 9 commands

I’m oriented. Here’s what’s in the folder you connected:

• Data/Parquet/opafy/ — the main individual-sentencing datasets, year=12 through year=25 (FY25 = ~26 MB, one parquet each). Sibling datasets: corp, crimhist, drug851, econ.

• Data/Downloads/ — the codebook (USSC_Public_Release_Codebook_FY99_FY25.pdf) plus the original CSV zips (opafy12–25nid_csv.zip).

• Scripts/ — convert_opafy.py, convert_others.py, report_builder.py, build_guide_pdf.py.

• Reports/ — prior outputs (EDVA/MD district charts, Texas enforcement analysis, overview HTML).

Jonathan: The five southwest border districts — SDCA, DAZ, DNM, WDTX, SDTX — dominate the federal system. What I'd like to do is replicate some of the figures in the Sourcebook, and create a table or two — using data from all the districts except the southwest border districts. I'd like to replicate Figures 2, 3, 6, 7, 8, 9, D-1, D-2, D-3, Table 29, precisely as they look in the Sourcebook, but using the data from all the districts except the southwest border districts. I'd also like to create a table that reports on totals for Race, Citizenship, Guilty pleas, Sentence imposed, and Length of imprisonment for all the districts outside the southwest border. Can you do that?

Claude: Thought process

This is a substantial task. Let me set up tracking and start gathering the materials I need — the .md file, the FY2025 Sourcebook (to see exactly what each figure looks like), and the codebook for district/variable definitions.

Ran 2 commands, loaded tools, searched the web

The web_fetch pulled the full Sourcebook text. Let me copy it locally and examine the specific figures and tables I need to replicate.

Ran a command

The tool-result file is on the host filesystem, not the sandbox. Let me use Grep on it directly.

Read 2 files, searched code

The web_fetch truncated the Sourcebook mid-way (stops at Table 18). I need the full figure/table list — let me get the Sourcebook index page, which lists everything including the “D” figures and Table 29.

Searched the web, searched code

I now have the full map. Here’s what Jonathan requested, with official titles:

• Figure 2 – Sentenced Individuals by Type of Crime

• Figure 3 – Number of Sentenced Individuals Over Time

• Figure 6 – Sentence Type for Sentenced Individuals

• Figure 7 – Criminal History Category of Sentenced Individuals

• Figure 8 – Sentences Under the Guidelines Manual and Variances Over Time

• Figure 9 – Sentence Imposed Relative to the Guideline Range Over Time

• Figure D-1 – Distribution of Primary Drug Type in Federal Drug Cases

• Figure D-2 – Mandatory Minimum Penalties in Drug Trafficking Cases

• Figure D-3 – Sentence Length in Drug Trafficking Cases by Major Drug Type

• Table 29 – Sentence Imposed Relative to the Guideline Range

Let me set up task tracking and pull the exact layout/values of each figure.

Claude and I went back and forth over the course of the next few days. Here is part of the report that Claude generated.

-Jonathan

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Federal Sentencing Outside the Southwest Border

FY2025 Sourcebook Figures & Tables, Recomputed Excluding the Five Border Districts

OVERVIEW

Excluding the five Southwest Border districts removes 27,455 of 66,662 federal sentencings (41% of the national total), leaving 39,207 cases. Doing so changes the picture dramatically: immigration falls from 37.7% to 11.7% of cases, drugs become the largest category, criminal histories are more serious, §5K3.1 early-disposition departures nearly disappear, and the variance rate climbs well above the national figure. Each figure below is shown as a matched pair — the full 2025 Sourcebook figure (all districts) beside the identical figure with the five border districts removed — so the effect of the border caseload is visible at a glance. All figures are drawn in the Sourcebook’s own style; the all-district panels reproduce the published national numbers exactly.

Southwest Border districts excluded: Southern District of California (SDCA), District of Arizona (DAZ), District of New Mexico (DNM), Western District of Texas (WDTX), and Southern District of Texas (SDTX) — DISTRICT codes 74, 70, 84, 42, and 41.

Methodology: Figures reproduce the FY2025 Sourcebook definitions exactly, computed on the USSC individual datafile (opafy, FY2025; FY2016–2025 for trend figures) after excluding the five Southwest Border districts. Every figure was validated by first reproducing the published national numbers, which matched the Sourcebook exactly. Figures 8 and 9 use the post-Booker variable SENTRNGE for FY2018–2025; for FY2016–2017 the pre-2018 datafiles use BOOKERCD, whose ‘Government Sponsored — Below Range’ category does not distinguish departures from variances. That category is apportioned to match the Commission’s published national guidelines-manual share for those two years, so the non-border split for FY2016–2017 is an estimate; FY2018–2025 are exact.

Figure 2

SENTENCED INDIVIDUALS BY TYPE OF CRIME

Left panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Right panel: the identical figure with the five Southwest Border districts excluded. Excludes the five Southwest Border districts. Based on the 39,207 non-border cases (of 66,662 nationally). The Drugs category includes trafficking and simple possession.

Removing the border districts transforms the composition of the federal caseload. Immigration falls from 37.7% of all cases nationally to just 11.7% — confirming that immigration enforcement is overwhelmingly a border phenomenon. Drug cases become the single largest category at 34.1% (vs. 24.5% nationally) and firearms rise to 18.4% (vs. 12.1%). The ‘interior’ federal docket is a fundamentally different mix of crime than the national numbers suggest.

Figure 3

NUMBER OF SENTENCED INDIVIDUALS OVER TIME

Left panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Right panel: the identical figure with the five Southwest Border districts excluded. Fiscal Years 2016–2025. Both panels share a common y-axis scale.

The non-border caseload runs at roughly 39,000–45,000 cases per year — a much flatter series than the national trend, which swings with border enforcement. In FY2025 the non-border districts accounted for 39,207 sentencings, 59% of the national total; the five border districts alone produced the other 41%.

Figure 6

SENTENCE TYPE FOR SENTENCED INDIVIDUALS

Left panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Right panel: the identical figure with the five Southwest Border districts excluded. Based on the 39,207 non-border cases. Alternatives include conditions of confinement under USSG §5C1.1.

Sentence type is broadly similar to the national picture, though the prison-only share is slightly lower (88.6% vs. 90.2% nationally) and probation-only slightly higher (7.4% vs. 6.2%), reflecting the near-universal use of prison in border immigration cases.

Figure 7

CRIMINAL HISTORY CATEGORY OF SENTENCED INDIVIDUALS

Left panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Right panel: the identical figure with the five Southwest Border districts excluded. 273 cases excluded for missing Criminal History Category; based on 38,934 non-border cases.

The non-border population has markedly more serious criminal histories. Category I drops from 52.0% nationally to 46.4%, while Category VI rises from 7.6% to 11.2%. Border districts are dominated by low-criminal-history immigration defendants; removing them reveals a more heavily-recidivist interior caseload.

Figure 8

SENTENCES UNDER THE GUIDELINES MANUAL AND VARIANCES OVER TIME

Top panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Bottom panel: the identical figure with the five Southwest Border districts excluded. Fiscal Years 2016–2025, non-border districts. FY2016–2017 derived from the pre-2018 BOOKERCD coding (see note below).

Outside the border, variances are consistently far more common. In FY2025, 40.5% of non-border sentences were variances, versus 31.2% nationally. The gap is driven largely by the border districts’ heavy reliance on §5K3.1 early-disposition (’fast-track’) departures, which count as within-the-guidelines-manual sentences and are almost entirely a border practice.

Figure 9

SENTENCE IMPOSED RELATIVE TO THE GUIDELINE RANGE OVER TIME

Left panel: all districts — reproduces the corresponding 2025 Sourcebook figure. Right panel: the identical figure with the five Southwest Border districts excluded. Fiscal Years 2016–2025, non-border districts. FY2016–2017 derived from BOOKERCD (see note below).

The within-range rate outside the border is 43.7% in FY2025 (vs. 51.5% nationally), and §5K3.1 early-disposition departures nearly vanish (1.0% vs. 6.1%). Non-government (defense-driven) variances make up the bulk of below-range sentencing in the interior districts.

TABLE 29

SENTENCE IMPOSED RELATIVE TO THE GUIDELINE RANGE

Fiscal Year 2025, non-border districts. Based on 39,002 non-border cases with a determinable comparison. The ‘Nat’l %’ column shows the published all-district figure.

The headline contrast: outside the border, only 43.7% of sentences fall within the guideline range (vs. 51.5% nationally), and total variances reach 40.5% (vs. 31.2%). §5K3.1 early-disposition departures collapse from 6.1% nationally to 1.0% — the clearest single signature of the border fast-track programs. Non-government downward variances (24.1%) are the largest single below-range category in the interior districts.

SUMMARY TABLE

KEY CHARACTERISTICS — DISTRICTS OUTSIDE THE SOUTHWEST BORDER

Fiscal Year 2025 (39,207 individuals). Totals for race, citizenship, conviction type, sentence type, and length of imprisonment. ‘Nat’l %’ shows all-district figures. Percentages exclude missing values within each category.

The non-border population is more racially balanced (Black 35.8%, Hispanic 30.7%, White 27.7%) than the Hispanic-dominated national figures, and overwhelmingly composed of U.S. citizens (78.3%). Guilty pleas remain near-universal at 96.4%. Mean imprisonment outside the border is 74.1 months (median 48).

- - -

Data: U.S. Sentencing Commission, FY2016–FY2025 Individual Datafiles (USSCFY16–USSCFY25). National totals validated against the published 2025 Sourcebook of Federal Sentencing Statistics.

The closings, though, are only partially about budget. More fundamentally, they are the delayed result of a public policy reform effort that began 13 years ago.

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In 2013, I served as the Attorney General’s representative on the U.S. Sentencing Commission. That July, we sent the Commission the Justice Department’s annual letter on federal sentencing policy. We titled it “Facing the Imperative for Structural Federal Sentencing Reform,” and it was not the usual technical commentary on the guidelines or a plea to add a new two-level enhancement. It argued that the determinate-sentencing framework built in the 1970s and 80s — mandatory minimums, the abolition of federal parole, and the assumption that nothing could be done to reduce reoffending — had produced a prison system that was both incredibly expensive and well past the point of marginal effectiveness. And it pointed to the states, where a bipartisan movement called Justice Reinvestment was already proving that a country could lock up fewer people and grow safer at the same time.

A month later, in August, Attorney General Eric Holder stood before the American Bar Association in San Francisco and brought the case to the country. His “Smart on Crime” initiative — announced in that speech — directed federal prosecutors to stop charging low-level, nonviolent drug offenders in ways that triggered long mandatory minimums, expanded compassionate release for elderly and infirm inmates who posed no danger, better targeted prosecutorial discretion, and promoted diversion programs as alternatives to prison. The numbers he cited were staggering. The federal prison population had grown almost 800 percent since 1980. The system was operating nearly 40 percent over capacity. More than 219,000 people were in federal custody. Incarceration in America had annual costs of some $80 billion. We were five percent of the world’s population and held close to a quarter of its prisoners.

The heart of the argument was not only moral, though it was that. It was fiscal and strategic. Every dollar spent warehousing someone who did not need to be there was a dollar not spent on the things that more effectively make communities safer — officers on the street, drug treatment, reentry programming, services for victims. Prison spending, we argued, was crowding out crime-fighting. The states had already shown a way through. Texas, staring at a projected need for thousands of new prison beds at a cost of billions of dollars, chose instead to spend a fraction of that on treatment, supervision, and specialty courts — and then watched its prison population stabilize and its violent crime rate fall. Arkansas, Kentucky, and more than twenty other states, red and blue alike, were running versions of the same experiment: taking the savings from incarceration they could safely forgo and reinvesting them in what works.

Justice Reinvestment was a method more than it was a slogan: analyze the data to find what is actually driving corrections spending, eliminate ineffective prison spending, redirect a portion of the resulting savings into community-based interventions that improve crime detection and reduce reoffending, and then measure whether it worked. What made it powerful was that it was empirical rather than ideological, which is why it drew support from governors and legislators who agreed on almost nothing else. Kentucky reserved its prison beds for its most serious offenders and was projected to save hundreds of millions of dollars. Arkansas trimmed its population even as its crime rate kept falling. The lesson we drew for the federal system was plain: imprisonment is a power to be used more sparingly, only to the extent public safety genuinely requires, and, at the size of the federal prison system then, the resources it ties up are better spent almost anywhere else.

What began as an Obama Administration initiative, incredibly, became something larger and more durable. In 2018, Congress passed and President Trump signed into law the First Step Act with lopsided bipartisan majorities, expanding earned-time credits, easing several mandatory minimums, and nudging the Bureau toward home confinement and halfway houses for people nearing the end of their sentences. The correctional center of gravity shifted — away from more imprisonment and toward supervision in the community. That shift drew population out of the kind of low-security institutions and camps now slated to close.

In many respects, the initiative worked spectacularly. When Attorney General Holder announced Smart on Crime, the federal prison population was 219,000 and expected to grow annually by about 7,500 prisoners for as far as the eye could see. That population today stands at about 153,000, a decline of roughly 30 percent from the 2013 peak — about 65,000 fewer people behind bars. And the catastrophe the critics predicted, that emptying the prisons would refill the streets with crime, simply did not happen. The reverse did.

The Council on Criminal Justice reported last month that crime has continued to fall to levels the country has not seen in generations. Homicide across its sample of major cities was 18 percent lower in the first half of 2026 than a year earlier, and the national homicide rate is likely reaching its lowest point since at least 1900. Yes, there was a spike in violent crime with COVID. But it has reversed as quickly as it materialized. Most offenses now sit at or below where they stood in 2019, before the pandemic. We cut the federal prison population by nearly a third over ten years, and crime went down, not up. Social policy rarely delivers a rebuttal that clean, in this case a rebuttal to the claim that mass incarceration is all that stands between us and disorder.

Despite the success of the initiative, there is one thing I have found disturbing. Even with 65,000 fewer prisoners than back in 2013, the Bureau of Prisons operates more prisons today than it did when Smart on Crime was announced — roughly 126 institutions now, against about 120 then. Fewer prisoners, more prisons. The system shed nearly a third of its population and somehow expanded its physical footprint. Part of the explanation is timing; facilities authorized and financed during the long boom kept opening after the population had already begun to fall. But most of it is plain institutional inertia. A prison, once built and staffed, becomes a constituency unto itself — jobs, contracts, a fixture of the local economy, a web of interests that does not dissolve simply because the beds have emptied. So the BOP did what bureaucracies do: it spread a shrinking population thinner and thinner across a growing, aging inventory of buildings. The $4 billion maintenance backlog is, in part, the bill for keeping all of them open.

This is why closing prisons is not a betrayal of the reform. It is its completion. The argument we made in 2013 was that money sunk into unnecessary incarceration is money stolen from more effective public safety. That argument does not end once the sentencing rules and charging practices change; it applies with equal force to the physical plant. Every dollar BOP spends heating, patching, and minimally staffing an institution it no longer needs is a dollar it cannot spend on the officers it is desperate to hire, on the treatment and reentry programming the First Step Act promised, or on the upkeep that keeps its remaining prisons safe and decent. Director Marshall inherited a system with a real staffing crisis and infrastructure that had been decaying for decades. Consolidating a population that has fallen by 65,000 people is not austerity for its own sake. It is the only responsible way to bring the Bureau’s footprint back into line with the mission it actually has.

None of this makes the closings painless, and an honest case for them has to say so directly. They will hurt. A federal prison is often the largest employer for a hundred miles in any direction. At Beaumont, Lexington, and Petersburg, BOP says affected staff can move to nearby institutions on the same complex. At Big Spring and La Tuna, in remote stretches of west Texas, there is no neighboring complex to absorb them; those employees face a reduction in force or a choice between uprooting their families and abandoning careers they spent years building. The surrounding towns will feel it too — the grocery and convenience stores, the suppliers, the restaurants that a prison payroll keeps in business. These are real people and real communities, and the fact that a closure is justified does nothing to make the losses less real.

The roughly 4,000 incarcerated people who will be transferred bear a cost of their own. Many will be moved hundreds or even thousands of miles farther from home. Decades of research — the same body of research the Justice Department relied on in 2013 — show that maintaining family ties is among the strongest predictors of successful reentry and lower recidivism. A transfer that puts a prisoner three states away from his children is not a bookkeeping detail. It is a real cost to the very goal the reforms were meant to advance.

So the honest question is not whether the closings are costly. They are. It is whether the money and the disruption are better spent maintaining prisons the country no longer needs, or redirected toward the people and communities the whole system exists to protect. That was the logic of Justice Reinvestment a decade ago, and it should govern now. The savings from these closures ought not disappear into a budget line. They should partially flow back into staffing and programming, into genuine support for the workers and towns absorbing the shock, and into keeping transferred inmates close enough to home that the family connections reentry depends on can survive the move.

In 2013, we built the argument that brought the federal prison population down. It is even more convincing today now that the crime figures have answered the skeptics so decisively. But an argument that stops at sentencing and never reaches the buildings is only half-finished. For a decade the Bureau managed decline largely by pretending it was not happening, keeping a sprawling plant intact for a population that kept shrinking beneath it. The closings are, at last, an admission that the decline was real — and a decision to act on it.

When we set out to shrink the federal prison population, the goal was never emptier buildings. It was a criminal justice system scaled to the actual problem — one that reserves the extraordinary power of incarceration for the people who genuinely require it and invests everything else in making that necessity rarer. The federal prison population has fallen by nearly a third. Crime is at a low the country has not seen in a century. And the prisons we built for a different era are still standing, still consuming money and staff we could put to far better use. Closing them will be painful, and it is overdue. It is the last and hardest step of a reform that, by almost every measure that counts, worked.

But Jennifer Doleac is a reminder that there is still reason to believe in genuinely thoughtful and rigorous policymaking driven by research and data rather than ideology and politics; and still people like her who practice it. Doleac is an economist and Executive Vice President of Criminal Justice at Arnold Ventures. She spent over a decade as an economics professor, and fortunately for all of us, her research has been in large measure focused on how to lower crime at lower human and fiscal cost. In her recent book, The Science of Second Chances: A Revolution in Criminal Justice, Doleac shows how coming to a crime problem with an open mind and a commitment to testing different hypotheses and approaches to address it can lead to remarkable results and effective and less expensive public policy. She follows the data, even when it leads to uncomfortable conclusions. If you haven’t seen it, here is a review of Doleac’s book we published a few weeks ago on our Substack —

These days, you can spot someone with integrity working on public policy rather easily: it’s the person who both the left and right respect, and someone who both the left and right are angry with. Doleac is one of these people. She recently announced she will be leaving Arnold Ventures this summer. I spoke with her in late June, and we discussed her decision and much more.

The interview has been edited for length and clarity.

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Jonathan: Thanks so much for speaking with me today. Could we start with just a little bit about you and where you grew up, what that time of life was like, and where you went to college?

Jennifer: Yeah, so I grew up in Massachusetts, about 40 minutes outside of Boston, in the suburbs. I felt like I had a pretty normal childhood. I have one sister, and she also lives in Texas now, somehow. I went to Williams College.

Jonathan: Why Williams?

Jennifer: It’s a small school in the middle of nowhere. My hunch is a lot of people have this experience where you do a bunch of college shopping, and some place just feels like it fits. You can’t quite articulate what it is. I’ve come to think of the college selection process as making your first big choice about your future. It doesn’t really matter what the choice is in the end; it’s just the fact that you’ve made it. I did a tour of Williams, and I just kind of fell in love. I really enjoyed my time there.

Jonathan: Did you study economics at Williams, and why economics?

Jennifer: Yeah, economics and math. I went in knowing I wanted to major in math. I’d always loved math growing up. What I did not realize at the time was that math in college tends to be a whole lot more letters than numbers. I loved math with numbers. It becomes more theoretical the further you go, and I actually really love the more applied, quantitative stuff. I took a couple of computer science classes, and took some econ classes, and wound up following econ farther and farther, and that’s what I really fell in love with in the end.

Williams had these tutorial classes where it’s two or three students and the professor, and you basically read a paper every week and write responses to it. I took a class with the then-college president, who was an economics professor, and we read a bunch of economics studies about higher education and the impact of different types of policies, including some of his papers.

It was the first time I realized that professors were researchers; like that’s a job you can have, to study this stuff.

I wound up talking to him about how one gets a job like that, and he’s like, well, you need a PhD in economics. I was like, okay, how do I do that? I wound up getting a job as a research assistant at Brookings in D.C. for a couple years after college. I then looked around and realized everyone who had a job I really admired and thought was really cool had a PhD in economics. So, I realized I probably needed to go back to school and do that.

Jonathan: You studied for your PhD at Stanford. What was that like, and how did you end up focusing on criminal justice issues?

Jennifer: I went in not expecting to study crime or criminal justice. It really hadn’t crossed my mind. I knew I loved economics. I figured I would study the economics of education. That was the world I really knew. But the practice of actually being an econ PhD student is you’re hunting around for a natural experiment, or an opportunity to run your own experiment. You’re looking for data that you can use to actually measure the impact of some policy or program that is interesting and can tell you something about human behavior.

At some point, I read a newspaper article about law enforcement DNA databases. The point of the article was that every state has its own rules about which groups of offenders are required to provide DNA to the database, and that means you can have states that are right next to each other where someone convicted of robbery goes in the database in one state and the next state over they don’t. The article suggested that was crazy and random and bad policy. I read it as an econ PhD student thinking it might be bad policy, but it’s great for research. It was a beautiful, natural experiment. So, I wound up looking at the effects of DNA databases on crime and criminal behavior.

Jonathan: And that fascination with crime continued?

Jennifer: I kept studying crime over and over again, because there are so many interesting questions. I think at this point, the most useful and most innovative work in this space is coming out of economics departments.

I gave a book talk recently, and a lawyer asked me “how do you think about normative values and the role of people’s rights when you’re advising what to do and what not to do?” I looked at him and I was like, I don’t think about that. That is not my role. That is your role as a lawyer. An economist’s approach is very consequentialist. What’s the impact of this on the ground. Then, we can discuss as a community whether we want that in light of all the various trade-offs we might be facing. It’s just a different lens to look at these problems.

Jonathan: When I was in college, I read a book by Richard Posner. It was on law and economics. Posner argued in favor of the use of the death penalty because of its efficient use of society’s resources. It seemed off to me that he wasn’t grappling with any moral issues.

Jennifer: What I have found most useful is to name the moral issues; name the elephant in the room and recognize that the policymaker has to consider lots of things when making a decision.

The piece I can help you with is this one piece. You might also be thinking about these other pieces. Take sentencing, for example? Why do we put people in prison?

When I’m in a room with policymakers, I point out that there are four broad reasons we lock people up. One is deterrence. We hope doing so will keep them from offending again. One is incapacitation, physically removing you from the community. The third is rehabilitation; it’s an opportunity to intervene. And the fourth is retribution; you’ve done something bad and you deserve to suffer for it. As an economist, I can tell you a lot of useful things about the first three of those. Those are all empirical questions. Do you get deterrence? Do you get incapacitation? Do you get rehabilitation? The fourth is a moral concern, and each person in the room might have different preferences about how much retribution or mercy someone deserves.

As an economist, I think it is fine that we all have different preferences, and data cannot tell you whether you’re right and I’m wrong, or vice versa. Everyone might come to different conclusions about how long a sentence should be. But we all would prefer to have less crime for less money. Whatever you think about retribution, you probably also care about what the impact on public safety is and so let’s nail down what that is.

Jonathan: While we’re talking about sentencing, do you have any thoughts about sentencing guidelines and whether they’re a good idea or a bad idea?

Jennifer: I don’t know that I have strong opinions about them as a concept. I think we generally swing back and forth as a society between how much discretion to give different criminal justice actors. Sentencing guidelines are one way we operationalize that. I will say that sentencing guidelines are great for research. They set up nice, natural experiments where people who are pretty similar, but some got one point higher on the guidelines and suddenly they get more years in prison.

Jonathan: Can we talk a little bit about Arnold Ventures (AV)? From the outside, it looked like you were thriving as a tenured economics professor before going to Arnold. What happened?

Jennifer: I got into the research game because I viewed it as the highest impact way I could help make policy better. It turned out being a junior faculty member was a really great place to build your expertise. You have all this freedom. But what I found in academia was that the more senior you become, the harder it is to do that externally-facing work, because the university is structured in a way that once you get tenure, it’s like, congratulations, you are now an expert, so your job is to serve on university committees and teach all the classes so that your junior colleagues can become experts.

I felt I was an expert now; I want to use this for something. It was getting more and more difficult to do that. I went to a couple conferences with some publicly facing academics. I asked them all, why are you still at a university? They each had compelling reasons for themselves that didn’t apply to my situation. So I knew it was time to leave. I then posted something on Twitter about how I’d realized academia was no longer the right fit for me. I think two days later, John Arnold reached out and said we’re looking for someone to lead our criminal justice program, any chance you’d be open to a conversation? The stars aligned. So, I took this crazy leap. Everyone thought I was crazy. I thought I was a little bit crazy. But I was ready for the new adventure.

Jonathan: Can you talk a little bit about AV, its role, and the role of other philanthropies in furthering best practices in criminal justice. I’m especially interested in your thoughts about how philanthropy and DOJ — and in particular the Office of Justice Programs — live side by side in promoting research and best practices?

Jennifer: I honestly had not thought much about this before taking this job. But now, three years later, I have a lot of thoughts about the role of philanthropy. What I knew about AV going in was that it was focused on evidence-based policy. It was originally founded by Laura and John Arnold as the Laura and John Arnold Foundation, and it funded only academic research to measure impacts of different interventions in the real world. Criminal justice was one of its earliest areas of focus.

Several years ago, they added policy and advocacy components and became Arnold Ventures. And the reason they did that is they looked around and realized we funded all this amazing research, and none of it has turned into policy and impact on the ground. They added policy and advocacy arms to become the lobby for evidence. My role was to focus on modern research standards to find better solutions to public safety problems, trying to double down on strong causal research, measuring, testing things on the ground.

The way I’ve come to think about the role of philanthropy is almost like the seed funder on the business side. Philanthropy is most adept at taking risks; trying lots of new things, pivoting quickly. And just as in the finance world, as things become more proven, once we have a sense of which of these thousand crazy ideas actually work, then you can think about bigger investments over time from a broader set of philanthropies, perhaps, or maybe government. Like an IPO when a company goes public, we hand over this idea to government and have government fund it at scale.

Jonathan: Can you talk a little bit more about what you call the risky investments?

Jennifer: John Arnold talks a lot about a two-by-two matrix of funding opportunities. On one axis, you’ve got impact, low or high impact, and on the other axis, you’ve got probability of success, low or high probability of success. In the first quadrant, you’ve got low probability of low impact. Nobody wants to fund that. The opposite quadrant — high probability, high impact — everyone wants to fund those things. But those are unicorns; they don’t come along very often. And so that leaves two quadrants left that philanthropies can go after. One is the high probability, low impact. Because there is a tendency to want to rack up quick wins, there’s an overabundance of philanthropic dollars going to the high probability, low-impact stuff.

Where there’s an undersupply of investment is the low probability, high impact ideas; the moonshots. John was always encouraging us to try to look for the moonshots. It can be really hard to tell up front which those are. So, we have been trying lots of stuff with a failing-fast mentality. One of the projects we’ve been developing over the last couple of years is looking at the effects of GLP-1s on substance use disorder and ultimately time in jail. There’s lots of anecdotal evidence that GLP-1s seem to have this impact; they reduce cravings for drugs and alcohol, but we don’t have the rigorous evidence yet. There are some ongoing clinical trials, but the question of the impact on the ground is quite different. There are lots of reasons this might not work. But if it does, it would be a game-changer in the public safety space. Finding projects like that has been really fun and rewarding.

Jonathan: There’s some recent research that seems to show that young people today are committing crime at a far lower rate than earlier generations. We now have the lowest homicide rate in a generation, and there are some researchers who are predicting that we’re not done with this crime decrease. It may be coming from our obsession with cell phones or something else. What do you think of this research?

Jennifer: After the most recent uptick in crime we had around COVID, we just went back to the previous downward trend in crime that is longstanding. So, a bettet question really is why did crime go up during COVID, and why did that uptick last so long? This makes me think the decline is due to something other than just the phones. There are lots of compelling reasons that young people are not out doing risky stuff as much as earlier. My hunch is it’s a whole bunch of stuff, including some of the crime control policies we put into effect, but also, we took lead out of gasoline and out of paint. That’s going to have bigger and bigger effects over time as lead continues to dissipate. There’s just all of these things; life has been getting better, and we’ve been doing lots of things that create progress.

I think all of the investments we’ve been making in society to try to give people more economic opportunity and make them healthier can have public safety payoffs that we just see accumulate over generations. That doesn’t mean crime isn’t still a problem. It’s certainly less of a problem than it used to be, and that’s wonderful. But there are still many communities where crime is THE problem, and is THE biggest concern of parents who are trying to raise children and want to make sure that they live into adulthood, much less be able to thrive in other ways.

I think one of the ways in which our public safety conversations kind of went off the rails in the early 2020s is people lost sight of how costly crime is. We were focused on the harms of the system, and those are important. But the system exists for a reason, which is to reduce crime, because crime is so costly. So, we have to think about both of those things.

Jonathan: You announced recently that you will soon be leaving Arnold Ventures. What’s coming next for you?

Jennifer: I’ve been at Arnold Ventures for three years; it’s been an amazing three years, I’ve learned so much. I’ve been really inspired by the momentum we’ve been able to build. I have been surprised — very pleasantly surprised — by how much appetite there is on the ground, especially among state lawmakers and state practitioners, for evidence-based policy. They just need help. They want to know what the evidence is; they want that evidence to guide policy. Arnold Ventures is basically the only major funder in this space. Federal government funding has been cut. But it’s crazy that for such an important problem, there’s only one major funder that is investing in finding new solutions, measuring the impacts of those solutions, and scaling them.

My goal in the coming years is to try to bring other donors into this space and make this pitch for an ROI-focused public safety agenda. It is different from previous conversations and previous pitches around the criminal justice system which have been more focused on social justice — which is wonderful. But it’s not what my motivation is here. I think public safety is really important, and we need to be smart about measuring ROI, figuring out what the most high-impact solutions are, and scaling them. That’s what I’ve been doing at AV. We have a moment here where there are a lot of people out there with a lot of money and I think a lot of opportunity to try to pull some of them into this space and use some of that money to make our communities safer. So, I’m going to try to do that.

Jonathan: We’ll be watching very closely. Last question. If you could change or institute two criminal justice policies that you think would bring more public safety and more justice to communities, what would those two things be?

Jennifer: Well, one would be to move a really big share of our prison budgets to investments in police investigations; to focus more on solving crimes faster, rather than making sentences longer. We know from tons of evidence that that is the best way to deter and prevent crime, and we, at this point, have dramatically under-invested in figuring out how to increase the probability of getting caught. So, let’s solve more crimes faster.

The other one would be, if I had a magic wand, I would embed some sort of experiment or quasi-experiment into every federal grant program that trickles down money to all the state law enforcement agencies. I think it’s just a huge, missed opportunity that the federal government has all of these COPS grants, for instance, all of these amazing funding programs that fund local and state law enforcement and we’re not learning from them as fast as we could be. We’re lucky if we learn what works and what doesn’t. But we could be systematic and have a more structured way of embedding experiments into those different funding streams, so we have more coin flips built in that tell us what new technology or what new program worked and what didn’t.

Jonathan: Thank you so much, Jennifer, for speaking with me today. It’s been fascinating to learn about your work. We’ll be watching closely for your new venture. Thank you for your service to the country

Jennifer: Awesome. This was fun. Thanks.

Recent changes in the understanding of addiction have contributed to greater adoption of treatment‑based responses in drug policy, including the development of drug courts as alternatives for individuals charged with lower‑level, non‑violent offenses. Drug courts are often recognized for benefits such as cost effectiveness and reduced recidivism, though prior research documents variation in access, participation, and sentencing outcomes across demographic groups, including race and ethnicity.

In 2022, a team of researchers at The Ohio State University and Cornell University received a grant from the National Institute of Justice’s W.E.B. Du Bois Fellowship for Research on Reducing Racial and Ethnic Disparities in the Justice System, Office of Justice Programs, U.S. Department of Justice (Award No.15PNIJ-21-GG-04708-NIJB) to examine racial disparities in drug court diversion. The Du Bois Fellowship supports investigator-initiated research for early career scholars that advances knowledge on the intersections of race, crime, and the administration of justice. The project explores how individuals access drug court programs and how legal system processes influence access to treatment-based alternatives to incarceration. Using a multi-phase, mixed-methods design, the project analyzes case-level data alongside stakeholder perspectives to identify how charging decisions, sentencing practices, eligibility criteria, and referral processes shape drug court access and completion with a focus on how this differs across racial, ethnic, and sex demographic groups. This research can inform data-driven improvements to justice system processes, treatment-focused interventions, and the allocation of resources in drug court programs.

Last month, The Ohio State University Moritz College of Law Drug Enforcement and Policy Center, The Ohio State University John Glenn College of Public Affairs, and Cornell University Brooks School of Public Policy Department of Sociology hosted a three-part webinar series highlighting the results of this research.

Descriptions and recordings of each of the webinars are available now —

The first webinar in the series, “Pathways into Drug Court: Stakeholder Perspectives on Race, Admission, and Engagement,” examines how drug court stakeholders understand the factors shaping access to and early experiences in drug court, with particular attention to criminal processing and admission decisions. Drawing on ethnographic observations in 22 drug courts across 18 counties and interviews with 52 stakeholders, the webinar explores how institutional structures, discretionary practices, and participant experiences intersect with race to influence who enters drug court and under what conditions. Findings suggest that stakeholders most often attribute differences in admission and early engagement to systemic and procedural factors, including eligibility criteria, referral processes, and prior experiences with the legal system, factors they noted may operate differently across racial groups. Stakeholders also discussed how trust in court‑based interventions, capacity to engage with treatment expectations, and cultural norms and stigma around help‑seeking may shape early program trajectories. Stakeholders described a range of potential strategies to support access and engagement, including outreach within the court, education for justice system actors and community members, and increased use of data in decision‑making processes. Overall, the findings underscore the importance of examining early stages of drug court involvement and highlight how institutional processes and stakeholder roles jointly influence participation and engagement across diverse populations.

The second webinar, “Racial Disparities in Criminal Sentencing and Drug Court Eligibility,” examines whether racial disparities in criminal justice processing ultimately restrict Black defendants’ access to drug courts through commonly used exclusionary criteria. Using approximately 350,000 misdemeanor and felony case data from Franklin County, Ohio, spanning 2006-2020, the researchers examined racial disparities across multiple case processing decision points and tested whether Black defendants are more likely than similarly situated white defendants to be convicted of offenses commonly used as drug court exclusion criteria when charged with these offenses. The researchers found evidence that, even after controlling for legally relevant variables, disparities in charging and convictions place Black defendants at a greater likelihood of having criminal records that may later become the basis for drug court exclusion.

Specialty court docket participation lowers recidivism, substance use, and unemployment, yet recent studies document disparities in who can access and complete treatment alternatives to incarceration. Much less understood, however, is whether the establishment of specialty dockets shapes the chances and severity of punishment for substance use in ways that differ across demographic groups. The final event in the series, “Specialty Docket Expansion and Changes in Misdemeanor Drug Case Processing Across Race and Sex,” drew on over 300,000 misdemeanor cases in Franklin County, Ohio Municipal Court between 2001 and 2019 to explore associations between the implementation of five specialty dockets and changes in misdemeanor drug sentencing outcomes by race and sex. Researchers identified two distinct eras of misdemeanor punishment for substance use cases. Amid the first era, specialty docket expansion coincided with rising overdose mortality in white communities, and punishment for substance use was less likely to occur and less severe. During the second era, as synthetic opioids transformed drug markets and overdose deaths became more widespread, punishment grew harsher, and the timing, type, and severity of this punitive reorientation toward sentencing for drug offenses varied by race and sex.

About the Study

Next Steps

Building on these findings, the research team is currently finalizing a comprehensive report for the National Institute of Justice and developing tailored briefs for each participating court to highlight local insights and practical strategies. Looking ahead, the team plans to expand this work by incorporating perspectives from drug court participants and additional stakeholder groups.

Acknowledgments

This work reflects the collaborative efforts of a dedicated research team, including principal investigators, study staff, and contributors across all phases of the project. The team is especially grateful to those members who led data collection, analysis, and the development of this webinar to share findings with broader audiences. They include —

Dr. Sadé Lindsay, Co-Principal Investigator, Jeb E. Brooks School of Public Policy and Department of Sociology, Cornell University
Dr. Alex Fraga, Co-Principal Investigator, Drug Enforcement and Policy Center, The Ohio State University
Dr. Tasha Perdue, Co-Principal Investigator, John Glenn College of Public Affairs, The Ohio State University
Lydia Applin, PhD Candidate, John Glenn College of Public Affairs, The Ohio State University
Additti Munshi, PhD Candidate, College of Social Work, The Ohio State University
Dexter Ridgway, Research Associate, Drug Enforcement and Policy Center, The Ohio State University
Rebecca Xie, PhD Candidate, John Glenn College of Public Affairs, The Ohio State University

Thank You to Our Partners

The research team extends its sincere appreciation to the courts and stakeholders who participated in this research. Their time, insights, and openness were essential to this study and continue to inform efforts to improve access to drug courts. Through more than 120 hours of observations and interviews, these partners provided invaluable perspectives on both the challenges and opportunities within drug court systems.

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The team looks forward to continuing this work and supporting efforts to strengthen equitable access to drug courts across Ohio and beyond.

Each of our original essays grapples with a systemic question that sits at the heart of the Commission’s policy agenda: the first, on how a federal advisory guideline system might be better structured; the second, on the place for second-look sentencing in the federal system, now especially timely in light of the recent Supreme Court decisions in Rutherford and Fernandez; and in this essay, why the Commission should issue a detailed, written, and reasoned opinion on when it applies guideline amendments retroactively.

The Commission’s recent notice of proposed priorities included this –

Beyond the consideration of possible policy priorities this year, the Commission has chosen to not solicit public comment or hold a hearing on retroactivity. When the Commission submits amendments to Congress, it may decide to publish an issue for comment and hold a hearing on whether to make some or all of those amendments retroactive. See USSC Rules of Practice and Procedure 4.1. The Commission is not taking these steps for any of the amendments submitted to Congress on April 30, 2026. While three Commissioners may have voted in favor of making retroactive Amendment 2 (relating to inflationary adjustments) of the amendments submitted by the Commission to Congress on April 30, 2026, those votes alone would not have met the Sentencing Reform Act’s four-vote threshold for retroactivity. See 28 U.S.C. 994(a)(2).

This essay from 2024 argues that the Commission has never adequately explained how the factors it considers in deciding retroactivity — the factors mentioned in its current policy statement — are measured and assessed against one another and against other factors. The Commission has never articulated how they lead to a set of “general principles” of retroactivity that can be applied in a consistent and principled way to future circumstances.

Since the essay was first published, the Commission has not applied any of its amendments that reduce penalties retroactively, although in the recent notice, it revealed that “three Commissioners may have voted in favor of making retroactive Amendment 2 (relating to inflationary adjustments) of the amendments submitted by the Commission to Congress on April 30, 2026.” And the Commission still has not publicly grappled with how retroactivity decisions are made.

Our hope is that the Commission will make it one of its priorities this year to hold a structured hearing on retroactivity. It could invite leading advocates or academics and have them argue — in a serious and rigorous way — what the Commission’s general principles of retroactivity should be and how they should be applied. The Commission then might write an opinion (or more likely, two competing opinions) explaining its thinking and analysis. Subsequently, the Commission could hold a facilitated conversation among stakeholders, using the opinion(s) as a starting point, to guide consideration of what an amended policy statement on retroactivity might look like. The participants would have a mandate to produce a structured report documenting the points of agreement, disagreement, and the tradeoffs at stake.

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Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?

July 17, 2024

Earlier this week, the U.S. Sentencing Commission held a public hearing to receive testimony from invited witnesses on whether to apply retroactively guideline amendments promulgated in April related to acquitted conduct, firearms, and drug offenses. The Sentencing Reform Act gives the Commission the responsibility, when it reduces the term of imprisonment recommended in the guideline applicable to a particular offense or category of offenses, to “specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u). In other words, the Commission must decide whether to apply guidelines that reduce imprisonment terms retroactively.

Since 1989, the Commission has indicated that “[a]mong the factors” it considers in making retroactivity decisions are “the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range.” These are the criteria the Commission has publicly identified — in the Background Commentary to §1B1.10 of the Guidelines — for its retroactivity decisions.

These factors must have seemed quite sensible to the Commission when it first added them to the Guidelines Manual, for they are not unlike the standards the U.S. Supreme Court set forth in Linkletter v. Walker, 381 U.S. 618, 622-24 (1965) and Stovall v. Denno, 388 U.S. 293, 297 (1967) for determining retroactivity of new rules of criminal procedure. In Linkletter, the Court faced the question of whether Mapp v. Ohio, which made the exclusionary rule for illegal searches and seizures applicable to the States, should be applied retroactively to cases on collateral review. The Court determined that retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. 381 U.S. at 636-640. The Commission’s retroactivity factors are echoes of the Court’s in that era.

But the Linkletter standard was quickly and roundly criticized, both in the academy and in the Supreme Court itself, for being overly opaque and for not leading to consistent outcomes. Justice Harlan repeatedly criticized the standard in various concurring and dissenting opinions. See, e.g., Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring in part and dissenting in part); Desist v. United States, 394 U.S. 244, 256 (1969) (Harlan, J., dissenting). The standard led to a hodgepodge of disparate treatment. Before too long, the Supreme Court changed course.

In Griffith v. Kentucky, 479 U.S. 314 (1987), the Court rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced and adopted the first part of the retroactivity approach advocated by Justice Harlan. Later, in Teague v. Lane, 489 U.S. 288 (1989), the Court held that new rules should receive very limited retroactivity in cases on collateral review. In those instances, the Court held, a new rule applies retroactively only if (1) the rule is substantive and not procedural or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

Whether you agree or disagree with the Court’s decisions in Linkletter, Griffith, and Teague, the Supreme Court should be commended for having directly wrestled with — in its written and reasoned opinions — how and why new rules should be applied retroactively. It laid out the factors, certainly, just as the Commission has. But then, the Court grappled openly with how to apply them. For example, in its inquiry into how the purpose of a new rule plays into the retroactivity decision, the Court weighed whether and to what degree the new rule was an effort to ensure “the fairness of the trial — the very integrity of the fact-finding process.” Linkletter, 381 U.S. at 628 n.13, 639 & n.20 (1965).

The Court also continued to openly wrestle with how the interests of finality are to be weighed in determining whether a new rule should be applied retroactively and when those interests are outweighed by, for example, a new “substantive” or “watershed procedural” rule. For example, in Montgomery v. Louisiana, Justice Kennedy reasoned for the Court that “[a] conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void. [Citations omitted.] It follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” 577 U.S. 190, 203 (2016). And in Edwards v. Vannoy, Justice Kavanaugh, writing for the Court, concluded that decades of experiences applying the Teague standard must lead to the conclusion that “no new rules of criminal procedure can satisfy the watershed exception.” 593 U.S. 255, 271 (2021).

The Commission has not done similar work explaining how the factors it considers in deciding retroactivity are measured and assessed against one another — and against other factors — in particular circumstances and how they lead to a set of “general principles” of retroactivity that can be applied to future circumstances. While individual commissioners have made statements at public hearings of their reasons for supporting or opposing retroactivity for individual amendments, the Commission as a body has never explained it’s approach to retroactivity beyond the bland and unhelpful statement in the Background Commentary to §1B1.10 that “[t]he listing of an amendment in subsection (d) reflects policy determinations by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound discretion of the court, a reduction in the term of imprisonment may be appropriate for previously sentenced, qualified defendants.” Doesn’t the reduction of a guideline range always reflect a policy determination by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing?

The lack of explanation has led to what looks — to me anyway — like a rather silly notice and comment exercise each time the Commission considers a new amendment for possible retroactivity. The Commission publishes an issue for comment, seeking input into the retroactivity decision, and the stakeholders interpret the three factors listed in §1B1.10 in diametrically opposite ways. This is not surprising, as the listed factors can reasonably point in any direction. If the “magnitude of the change in the guideline range made by the amendment” is small, advocates for retroactivity can argue that the disruption to the system will likewise be small. If the magnitude is large, they can argue that the cost savings to the Bureau of Prisons will likewise be large, and that justice demands action in light of the enormity of the impact. Either way — small or large — the magnitude factor points both ways.

So, for the amendments passed in April, where the Federal Defender Sentencing Guidelines Committee can reasonably conclude that “[t]hese factors favor retroactivity for each amendment”, Letter from Heather Williams, Chair Federal Defender Sentencing Guidelines Committee to the Honorable Carleton W. Reeves, June 21, 2024, the Department of Justice can reasonably come to the exact opposite conclusion. Letter from Scott Meisler, U.S. Department of Justice ex-officio Member, U.S. Sentencing Commission to the Honorable Carleton W. Reeves, June 21, 2024. Both can quote from individual commissioners –

As Commissioner Gleeson observed last year during the vote on retroactivity of Parts A and B of Amendment 821 (the 2023 Criminal History Amendment), remedying overly punitive sentencing policies and practices that have a disproportionate effect on Black and Brown people implicates fundamental fairness concerns within the sentencing guidelines and the criminal justice system, more broadly.

Letter from Heather Williams at p. 3.

As then-Commissioner Howell observed in 2011, “the Commission has over its history used its authority under 28 U.S.C. § 994(u) infrequently to [make] retroactive guideline amendments that reduce sentencing ranges.” That same year, then-Chair Saris explained that, “because of the importance of finality of judgments and the burdens placed on the judicial system when a change to the guidelines is applied retroactively, the Commission takes this duty very seriously and does not come to a decision on retroactivity lightly.”

Letter from Scott Meisler at p. 2.

Both can reasonably analyze the §1B1.10 factors and come to opposite conclusions. And while prosecutors and defense attorneys coming to such opposite conclusions is not something novel or unexpected, the factors listed in §1B1.10 are particularly unhelpful in creating any cognizable and applicable standard for retroactivity, at least without further explanation by the Commission about how and why it applies those factors and how and why they interact with one another and with the principle of finality.

The Commission has expressed no principles for the application of the §1B1.10 factors listed and especially how they weigh against the interests of finality. While §1B1.10 has been amended many times to address the mechanics and application issues of amendments that have been applied retroactively, the Commission has not addressed its decision-making on which amendments to apply retroactively.

Should retroactive application of guideline amendments be limited to instances “when an amendment would rectify an inequity,” as suggested by the Criminal Law Committee of the Judicial Conference? Letter from the Honorable Edmond E. Chang Chair, Committee on Criminal Law of the Judicial Conference of the United States, to the Honorable Carleton W. Reeves, pp. 4-5, June 21, 2024. Should retroactivity be used “to rectify past unwarranted disparity in applying [an] enhancement” as suggested by the Federal Defender Sentencing Guidelines Committee? Letter from Heather Williams at p. 12. How does the Commission weigh the complexity of applying an amendment retroactively? How does it weigh the impact of retroactivity on the federal criminal justice system generally and how does that analysis relate to the legislative history of 28 U.S.C. § 994(u) which states: “the Committee does not expect that the Commission will recommend adjusting existing sentences under the provision when guidelines are simply refined in a way that might cause isolated instances of existing sentences falling above the old guidelines or when there is only a minor downward adjustment in the guidelines. The Committee does not believe the courts should be burdened with adjustments in these cases.” S. Rep. 225, 98th Cong., 1st Sess. 180 (1983). How did the Commission decide to apply the “status points” amendment retroactively last year when the amendment leads in the vast majority of cases to the equivalent of a one-level adjustment and how is that consistent with Congress’ direction not to apply an amendment retroactively when it is “only a minor downward adjustment in the guidelines?”

These and so many other questions deserve answers from the Commission. Over ten years ago, my colleague, Professor Berman, published an article discussing finality considerations, Re-Balancing Fitness, Fairness, and Finality for Sentences. Wake Forest J. L. & Pol’y, Volume 4:1, 151, 2014. In it, he identified some of the similarities and differences in the analysis of sentencing finality on the one hand and judgment finality on the other. Among other points, Professor Berman suggests different sentence finality concerns are implicated for crimes that create “lasting victims whose personal repose and psychic peace may only be well served by bestowing sentences with heightened certainty and predictability.” His article and others engaging with distinct sentence finality concerns flag components of the work the Commission ought to do and then explain to stakeholders and the public.

None of this is to suggest that developing a reasoned Commission opinion — and set of principles from the §1B1.10 factors — on how it implements § 994(u) will be simple. Last year’s 4-3 vote on retroactivity by members of the Commission regarding criminal history amendments suggests there may be majority and dissenting opinions. There will certainly be differences of views among the commissioners, some of which will be reconcilable and some of which will not. Nonetheless, the Commission owes it to the rest of us to wrestle with these issues, first privately, but then in a detailed, written, and reasoned accounting of its decision-making. Congress wisely gave the Commission the responsibility for retroactivity decisions. But the Commission owes it both to Congress and the rest of us, to exercise its expertise more deliberately, explicitly, and transparently.

There is a tendency in all of us to believe that whatever expertise we have in one field will translate naturally to others. Our mastery of something gives us a false sense of universal competence. Elon Musk believed it would be so easy to run the federal government because of his success starting and running an electric car company. But I keep checking my bank account for my DOGE dividend check he promised, and nothing ever arrives.

Judges, unfortunately, are not immune from this tendency. As Carol Leonnig and Aaron Davis well documented in their book, Injustice: How Politics and Fear Vanquished America’s Justice Department, Merrick Garland brought a judicial mindset with him to the Department of Justice (DOJ) in 2021, both in the way he ran the Attorney General’s office and in an overly cautious approach to the job he took to avoid the appearance of being political. The consequences of that judicial approach made history.

At the Commission, which has been chaired by seven different judges, a judicial mindset has been the dominant institutional culture, shaping not just who sits on the Commission but how it approaches its work. Judges are trained and experienced in deciding disputes between adversaries. In doing that, they receive written submissions from opposing parties, hold hearings at which those parties make their best arguments, and then retreat to chambers, perhaps to discuss the dispute with their clerks, but certainly to render a judgment of their own. It’s a tried-and-true process for resolving disputes of law and fact between two parties. It can be a very poor process for making sustainable sentencing policy.

The Commission’s overall professional diversity problem compounds this judicial orientation. We have written on the Substack before about Judge Marvin Frankel’s vision for a sentencing commission filled with “lawyers, judges, penologists, and criminologists . . . sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”

But the U.S. Sentencing Commission’s membership has never matched that vision; it has been dominated by judges and lawyers. Unlike most state sentencing commissions that typically have between one and two dozen members of varying backgrounds and experiences, the U.S. Sentencing Commission has only seven seats, and they’re almost always filled with just lawyers and judges.1

The most tragic illustration of what happens when a sentencing policy making body thinks and acts like a court came in the mid-1990s, when the Commission was confronting the important sentencing question of what to do about the 100-to-1 quantity ratio that once defined the crack and powder cocaine sentencing disparity. The Commission had unanimously concluded that the disparity could not be justified; that the racial consequences were unwarranted; and that the Guidelines could account for differences in aggravating factors associated with individual cases without a broad-brush sentencing scheme based solely on drug type and quantity. But there was disagreement about whether to eliminate the differential ratio entirely or merely reduce it.

The Commission structured its decision-making then as it has done for most of its history. It solicited written briefing from the various parties and held a public hearing resembling an oral argument, at which various interest groups made their most forceful case. Then, Chair Richard Conaboy, a federal judge from the Middle District of Pennsylvania, asked each commissioner to reflect in private on what they had heard and to then vote their conscience. If Congress disagreed, he said without any concern, it could reverse the Commission’s decision as appellate courts reverse lower court decisions. No big deal, he surmised. After virtually no deliberation, the Commission voted four to three in a public meeting to equalize the quantity-based penalties for crack and powder offenses. The vote came as much of a surprise to the commissioners as to the public. The Clinton Administration almost immediately came out against the Commission action. Congress later formally rejected it. A historic opportunity was lost. The Commission would soon lose its quorum and then all of its commissioners. A big deal after all.

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The Sentencing Commission announced last month that it will undertake a comprehensive review of its Rules of Practice and Procedure — the document that in theory governs how the Commission conducts its business, engages the public, develops guideline amendments, and manages its relationships with Congress, the courts, and the Executive Branch. Those Rules were last amended in 2016, and before that in 2007. The last truly comprehensive rethinking dates to the Rules’ original adoption in 1997. This new review, therefore, represents not merely a housekeeping exercise but a genuine opportunity to ask fundamental questions about whether the Commission’s institutional design and policymaking processes are actually adequate to the consequential work the Commission performs.

Fundamental to the task is a recognition that the U.S. Sentencing Commission is not a court. It is a policymaking body. It makes sentencing policy that, at its core, like much policymaking, is a balancing of competing values — proportionality against deterrence, just punishment against rehabilitation, uniformity against the need for individualized justice, granularity against workability. The Commission’s processes have been designed in many ways to look like courtroom adjudication: written briefing from interested parties, public hearings with each witness setting forth its preferred policy alternative, no public deliberation, and then a vote. That architecture is not designed to produce the kind of shared and careful consideration that good sentencing policy requires.

What is missing from the policy development process held in public — structurally absent — is the public and reasoned weighing of competing interests against each other, the reasoning toward a solution that serves not any particular constituency but the public as a whole. Commissioners listen to sequential advocacy, not structured deliberation. As a member of the Commission for ten years, I found this the most excruciating part of being a commissioner. I wrote about in the context of retroactivity decision here —

The Commission receives not a balanced assessment of the relevant considerations but a series of maximally one-sided presentations, each designed to push it in a particular direction. This is the way lawyers are trained. It would have been extraordinary if good policy had consistently emerged from that process.

The Structural Limits of the Current Policy Development Process

Nowhere is this structural problem more apparent than in the Commission’s advisory group structure and, to a significant extent, its representation by the Department of Justice. The Commission maintains standing advisory groups organized around individual constituencies — practitioners, probation officers, tribal issues, victims. Each presents its preferred outcomes to the Commission. And each does so without ever being required to sit across the table from the other groups, hear their arguments, acknowledge the legitimacy of competing interests, or explain how its preferred outcome serves the public interest rather than merely its own.

The single-stakeholder advisory group model is perfectly designed to produce advocacy. It is almost perfectly designed to prevent deliberation. Members don’t hear each other’s arguments until those arguments have been cemented into and presented as written comments or oral hearing testimony. They are never required to confront the costs their preferred positions impose on other constituencies. They are never asked to prioritize, to trade off, to explain how their preferred outcome fully serves the public interest. The result is that the Commission receives a series of maximally opposed position statements and is left entirely on its own to bridge the gap.

What is structurally absent from the Commission’s public policy development process is any mechanism for weighing competing interests against each other — for reasoning toward a solution that serves the public as a whole.

When I served as the Attorney General’s representative to the Commission, we were often part of the problem. I found the most valuable part of the role was its intelligence-gathering function. The Department of Justice encompasses United States Attorney’s offices in ninety-four districts, each with its own caseload, its own prosecutorial culture, and its own ground-level experience of how the Guidelines work and where they fall short. Surveying this vast operational enterprise, as we did about this time each year — asking line prosecutors, supervisors, and also agency officials what was working, what was not, and what they would change — consistently produced insights that no amount of Washington-based consideration could replicate.

The frustrating part came when proposed amendments were published for comment. What happened — at DOJ and across Commission stakeholder groups, with a regularity that came to feel almost mechanical — was for every stakeholder to argue for the outcome that best served its own institutional interests. DOJ argued mostly for positions that favored prosecutorial flexibility and punishment. Victims’ organizations argued for the interests of victims. Defense organizations argued for decreased punishment. Each side marshaled whatever data supported its preferred position, ignored what did not, and presented its case with complete confidence that its preferred outcome was also the just one. Nobody in the room was required to fully confront the competing interests against each other. The task was not structured to find the answer that best served the American people.

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As the Commission takes on its review of its rules and procedures, it need not start from scratch. It is blessed with a remarkable body of knowledge about how rulemaking agencies can do better. This knowledge base includes much information on how the Commission can engage more diverse constituencies, ground policy in stronger empirical foundations, conduct more genuine deliberation, and produce decisions that are more legitimate and more durable.

The Administrative Conference of the United States (ACUS) has produced a library of recommendations on effective rulemaking practice, covering everything from advanced notice procedures to the use of negotiated rulemaking, from digital engagement platforms to plain-language communication. State sentencing commissions — particularly those in Minnesota, North Carolina, Washington State, and Pennsylvania — have developed sophisticated practices for empirical guideline development, racial equity monitoring, post-implementation evaluation, and structured public engagement that the federal Commission has never systematically examined. Federal agencies like the Consumer Financial Protection Bureau, the Environmental Protection Agency, and the Federal Trade Commission have developed stakeholder engagement models and comment-response practices that go far beyond what the Commission currently utilizes. The Model Penal Code’s sentencing provisions (MPC:S), approved by the American Law Institute in 2017, represent the most comprehensive scholarly synthesis of best practices in sentencing commission governance ever produced. Interestingly, it includes a directive that “Commission members should be selected for their wisdom, knowledge, and experience and their ability to adopt a systemwide policymaking orientation. Members should not function as advocates of discrete segments of the criminal-justice system.”

None of this knowledge has been systematically brought to bear on the Commission’s institutional design and its policymaking processes. The Commission should begin its rules review by conducting a formal study — perhaps in partnership with ACUS or with a leading academic institution — that catalogs these best practices, assesses their applicability to the federal sentencing context, and identifies the specific reforms most likely to improve the quality and legitimacy of the Commission’s policymaking. To proceed with rules revision without this foundation would be to navigate without a map that is readily available.

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When it does this review, the Commission will discover that one best practice that it should consider utilizing is negotiated rulemaking. The Negotiated Rulemaking Act of 1990 provides a framework, regularly used by other federal regulatory agencies, in which all significantly affected interests are convened at the same table, under the guidance of a trained neutral facilitator, to negotiate the content of a proposed rule by consensus. The core insight is that bringing parties together — requiring them to hear each other’s arguments, to acknowledge the legitimacy of competing interests, and to understand that the alternative to agreement is a rule they have no hand in shaping — transforms the dynamic from advocacy to problem-solving.

Applied to the Commission’s processes, the model might work like this. The existing single-stakeholder advisory groups — and any new groups added to fill current representational gaps — could continue to serve a vital function: fact-finding. They would gather and transmit to the Commission the knowledge, experience, and practical wisdom of their constituencies. They would tell the Commission what the Guidelines look like from the ground. That is genuinely valuable work, and those groups should likely be preserved and strengthened for that purpose.

But the deliberative function — the work of weighing those inputs against each other and reasoning toward balanced policy recommendations — would be taken up by a separate, structured process: a negotiated rulemaking panel, convened for each significant proposed amendment, comprising representatives of all relevant constituencies, working under the guidance of a professional facilitator, with a mandate to produce either a consensus recommendation or a structured report documenting the points of agreement, disagreement, and the tradeoffs at stake.

The facilitator’s role is critical and often underappreciated. A skilled facilitator does not merely manage process, she helps parties move from positional bargaining to interest-based negotiation, distinguishing what each party is demanding from what each party actually cares about and why. She creates conditions in which stakeholders can acknowledge privately held uncertainties, explore creative options that no party would propose unilaterally, and build the trust necessary for genuine compromise. She holds participants accountable — to each other and to the public — for the quality of their reasoning.

The goal of this process is not consensus for its own sake. It is to find, through structured deliberation among those who best understand the relevant considerations, the public interest compromise that best serves the American people — not the solution that best serves victims’ organizations, not the solution that best serves DOJ, not the solution that best serves the defense bar, but the solution that most faithfully reflects what justice actually requires when all of those legitimate interests are weighed honestly against each other.

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There is already a model in the sentencing field that captures the spirit of this approach. The Villanova Sentencing Workshop (VSW), developed by Professor Steven Chanenson, now in its twenty-fourth year, is described in Steve’s essay here —

The VSW, like the Yale, Minnesota, and other sentencing workshops, brings together sitting judges, prosecutors, public defenders, parole board members, corrections experts, and law students to work through real sentencing cases in an immersive, multi-day setting. The key to its success is precisely what the Commission’s advisory process lacks: participants from across the system, with genuinely different perspectives and institutional roles, are required to engage directly with each other’s reasoning — not to present their positions to a passive audience, but to deliberate together. As one federal judge who participated in a predecessor workshop reflected, issues that had seemed simple suddenly revealed many complex layers, and the conversations proved more sophisticated and nuanced than any she had encountered in her own courtroom. The VSW has already served as a policy sandbox for the Pennsylvania Commission on Sentencing, allowing it to test drive ideas in a confidential deliberative setting before they are ready for formal consideration. The federal Commission could develop analogous structured deliberative processes — not as educational exercises, but as genuine inputs to its policymaking.

The goal of all of this is to find, through structured deliberation among those who best understand the relevant considerations, the public interest compromise that best serves the American people.

The Stakes Are High; the Moment is Now

The stakes are high. The Commission’s Sentencing Guidelines govern the fate of approximately sixty thousand federal defendants each year. The decisions embedded in those Guidelines — about the relative severity of punishment for different offenses, the weight given to criminal history, the proper balance of sentencing purposes, and much more — are consequential policy choices that impact, directly or indirectly, all of us. They determine who goes to prison and for how long, who returns to their families and communities, and how the vast coercive power of the federal government is distributed across the American population in service of public safety. And yet the processes by which those decisions are made remain, in important respects, remarkably thin.

The Commission should approach this review with both humility and ambition: humility because the problems with the current model are deep and structural, and ambition because there is an extraordinary wealth of experience — from other federal regulatory agencies, from the Administrative Conference of the United States, from state sentencing commissions, and from the academic literature on deliberative governance — that the Commission has never systematically drawn upon. As mentioned, the first step is to develop a comprehensive report cataloging best practices and the hard-won lessons before drafting or amending a single rule.

The Commission’s rules review is an opportunity that should not be wasted on modest adjustments to notice periods and comment deadlines. The deeper questions — about who has voice in the Commission’s deliberations, about how competing interests are weighed, about whether the Commission’s processes are designed to produce deliberation or merely advocacy — are questions that the current rules have never adequately engaged. There is now enough experience, from enough different sources, to know that better models exist. The Commission should begin its review by learning from them and then build a new procedural architecture worthy of the consequential work it is called to perform.

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In other essays, we have imagined what the Commission might be like if economists ran it –

and we contemplated whether machine learning could bring new thinking and insights to the Commission –

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The Commission set forth somewhat similar broad priorities in mid-year 2024, which was also around the time this Substack got started. In one of my first posts here, I detailed my thinking (and writing) about modern second-look sentencing mechanisms and highlighted a co-authored letter submitted to the Sentencing Commission urging it to embrace “a robust ‘second look’ agenda.” That letter urged the Commission to seize a leadership role in advancing research and sound policymaking with respect to resentencing opportunities for prisoners in both federal and state systems. In the subsequent two years, the nationwide development, application, and discussions of various second-look sentencing mechanisms has increased considerably, and recent Supreme Court decisions in Rutherford and Fernandez have added another layer of legal and practical uncertainty regarding federal statutory sentence reduction authority.

We are reprinting here my prior post not only because it remains timely, but also because I am especially eager to advocate again for the Commission to pursue a major convening (or two) “to collect information about, and get stakeholder input about, the development and implementation of second-look sentencing mechanisms nationwide.” Even if — perhaps especially if — the Commission finds itself without a quorum, it would be valuable and appropriate for the Commission to use its considerable staff, resources, and expertise to bring together policy makers, jurists, and litigants from across the country, from state and federal justice systems, to advance and enhance an informed understanding of second-look sentencing best practices. To that end, the Commission might also find useful some of the other writings on this Substack from an array of folks on this important topic:

From Douglas Berman, “Should Second Look Efforts Focus Particularly on Drug Offense Sentences?”

From Marta Nelson, “Second Look Laws Are Passing — When Advocates Frame Them as Righting a Wrong”

From Norman L. Reimer, “First Steps and Second Chances”

From Jonathan Wroblewski, “What’s Really Going on with Compassionate Release?”

Click here for a list of all our Substack essays on second-look sentencing.

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Envisioning a second-look sentencing agenda for the U.S. Sentencing Commission

With growing use and interest in second-look sentencing in state and federal systems, the time is right for research on, and expansion of, second-look best practices

July 12, 2024

Responding in part to the modern realities of mass incarceration and massively long sentences in the United States, I have long been an advocate for all sorts of second-look sentencing mechanism. As I have stressed in a number of past articles, various forms of second-look sentencing have been important parts of the American sentencing tradition. Executive clemency powers, enshired in the US Constitution and all state constitutions, is a mechanism for second-look sentencing. So too has been traditional parole review and release, which was a fundamental part of every American sentencing system through most of the 20th Century.

In the 21st Century, perhaps in part because of new restictions or diminished use of parole and clemency, other mechanisms for second-look sentencing have emerged and been garnering great attention. In particular, reform advocates (including the American Law Institute and the American Bar Association) have urged jurisdictions to create or expand judicial authority to revisit past prison sentences, and a growing number of legislatures are enacting or actively considering judicial second-look sentencing authority. Notably, a number of different types of laws and concerns are often (properly) included within the “second look” sentencing discussion, ranging from compassionate release laws that allow for sentence review under certain special circumstances, to doctrines focused on giving youthful offenders serving extreme prison terms a chance for parole or sentence review, to laws allowing prosecutors to initiate resentencing for all prisoners for any reason, to laws requiring judges to review all long prison terms after a certain period.

For anyone interested in broader reading on these topics, I can recommend many new resources. The Sentencing Project has this new report on the “Second Look Movement” and has created a “Second Look Network.” The goup For the People, which is focused particularly on prosecutor-initiated resentencing, has assembled here publications and resources. Some notable long reading lists on these topics have been assembled by FAMM here and NACDL here and the Seattle Clemency Project here. And, for a somehwhat more dated and academic discussion of these topics, here is a partial sampling of some of my major second-look related writings:

• “Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines“ (2009)

• “Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers“ (2010)

• “Re-Balancing Fitness, Fairness, and Finality for Sentences“ (2014)

• “Reflecting on Parole’s Abolition in the Federal Sentencing System“ (2017)

I find all the recent reform and advocacy in the second-look space quite exciting, but also a bit overwhelming and now needing more systematic and sustained review. Though I view the general argument for many second-look sentencing mechanisms to be compelling, assessing the particulars and determining best practices conceptually and practically is quite challenging. For that reason (and others), I was very pleased to have the chance to work recently with Jeremy Haile, Director of Policy for For The People, and Erica Zunkel, Clinical Professor of Law at The Law School at The University of Chicago, on a letter we submitted to the U.S. Sentencing Commission urging it to embrace “a robust ‘second look’ agenda.” Here is how our letter concludes, explaining what we have in mind:

In part because this Commission has recently given focused consideration to one aspect of sentence reconsideration through recent amendments to §1B1.13, we believe this Commission is now uniquely positioned and able to develop and advance a robust “second look” sentencing agenda in the months and years ahead. Many activities might comprise such an agenda, and here we will propose just a few possibilities for Commission consideration:

• Convene a national second-look sentencing conference: To establish sentencing laws reflecting the “advancement of knowledge of human behavior as it relates to the criminal justice process,” 28 U.S.C. § 991(b)(1)(C), this Commission should hold a public conference in order to collect information about, and get stakeholder input about, the development and implementation of second-look sentencing mechanisms nationwide. Given the variety of “second look” laws being proposed and implemented in states and localities across the country — ranging from “traditional” compassionate-release laws to laws enabling resentencing of youthful offenders, to broad prosecutor-initiated and universal second-look resentencing laws — the policies and practices surrounding the review and reconsideration of prison sentences are quite dynamic and yet still quite opaque. A national convening conducted by the Commission to consider these laws would help not just this Commission, but also policy makers nationwide, have a more informed understanding of “second-look” best practices.

• Broadening federal resentence reductions: To effectuate the “purposes of sentencing” and to avoid “unwarranted sentencing disparities,” 28 U.S.C. § 991(b)(1)(A-B), this Commission should conduct workshops to assess and improve the functioning of the sentence reduction authority in 18 U.S.C. § 3582(c)(1)(A). Though Commission data indicate more sentence reductions motions have been filed since Congress sought to expand their use in the First Step Act of 2018, recent data also show that, on a monthly basis, far less than 0.05% of all federal prisoners are able to secure a sentence reduction. Particularly given data showing remarkably low recidivism rates for persons released early from federal prison during the COVID pandemic, Commission data suggest federal sentence reduction could and should be expanded. Potential approaches to expansion might include statutory reform for second looks for long-serving federal prisoners (as Senator Corey Booker proposed in 2019), reforms enabling federal prosecutors to initiate sentence reductions for a wide range of reasons, a right to counsel and funding for representation for federal prisoners bringing sentence reduction motions, careful study and review of Department of Justice opposition to sentence reduction motions, and further expansion of the Commission’s categories of cases in policy statement §1B1.13 that can justify sentence reductions.

• Analyzing processes of federal sentence reductions: Though this Commission has started providing data about sentence reduction motions brought under 18 U.S.C. § 3582(c)(1)(A)(i) since Congress sought to expand their use in the First Step Act of 2018, these data raise a host of questions about who is seeking and who is securing sentence reductions. First, just when, how, and why federal prosecutors and/or BOP officials support or oppose these motions are unclear. Second, the patterns of grants and denial of these motions in different districts and circuits raise further questions about whether local cultures, rather than consistent national policies and practices, may unduly shape the outcome of sentence reduction motions. Third, federal prisoners do not have a constitutional right to counsel for bringing these motions, and it is unclear whether and how prisoners who may merit sentence reductions are obtaining sufficient representation. This Commission could and should produce a series of reports about ways to improve the sentence-reduction process and decision-making.

We can readily imagine a range of additional activities that could be part of a sound robust “second-look” sentencing agenda for this Commission. We sincerely hope you find some of these specific suggestions helpful, but the main goal of this letter is to urge this Commission to seize a leadership role in advancing research and sound policymaking with respect to resentencing opportunities for prisoners in both federal and state systems. Even if the United States did not have a massive prison population, such leadership on these issues would be valuable. Given that the federal prison system is the largest in a nation with a massive number of persons behind bars, we consider such leadership a true moral and constitutional imperative.

As a follower of sentencing law and a fan of sentencing pursuant to law, I have always been troubled by the lawlessness of sentencing appeal waivers. At bottom, any plea agreement providing that a future sentence will be unappealable necessarily authorizes and immunizes lawless sentencing decision-making by the judge. Put another way, broad sentencing appeal waivers, if enforceable, enable both sentencing processes and outcomes to be entirely untethered from any and all forms of sentencing law.

One can, of course, imagine why federal prosecutors and defendants might want to untether sentencing decision-making from constitutional, statutory, and guideline law. As the Supreme Court noted in Hunter v. United States, federal sentencing “is a complex affair in our criminal justice system, involving . . . the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors.” With an eye on desired outcomes, the parties may hope a district court will glide past nettlesome guideline issues or even ignore statutory mandates they disfavor. With an eye on speedy action, the parties may hope to truncate the procedural demands of this “complex affair.” As Bill Otis has noted in this Substack essay, when sentencing is subject to detailed laws and appeals, there can be “time consuming and expensive appellate litigation.” So, for various reasons in various cases, the parties may find it convenient and useful to authorize lawless sentencing decision-making and immunize it from review on appeal.

But lawless sentencing, and any plea deal that authorizes and immunizes lawless sentencing, is surely in tension with the Constitution’s command that “no person ... be deprived of life, liberty, or property, without due process of law.” And efforts by prosecutors and defendants to authorize lawless sentencing decision-making also surely undermines the raison d’être of the Sentencing Reform Act of 1984 (SRA). Congress enacted the SRA to bring robust and enforceable law to federal sentencing — responding to Judge Marvin Frankel’s potent criticism of lawnessness in sentencing — and it created the U.S. Sentencing Commission to create comprehensive guidelines to ensure all aspects of federal sentencing are based on law and lawful reasons. A plea agreement with a broad sentencing appeal waiver essentially nullifies the foundational “rule of law” commitment that Congress brought to sentencing through enactment of the SRA and the creation of the Sentencing Commission.

These realities provide a critical backstory to the Supreme Court’s recent consideration of the enforceability of sentencing appeal waivers in Hunter v. United States. Though I was pleased the Court embraced a “miscarriage of justice” limit on the enforceability of such waivers, the Court disconcertingly failed to engage with the Sentencing Reform Act or any clear “law” at all. In a blog post after the Hunter ruling, I noted just how little law is to be found in any of the opinions in Hunter. The Court’s opinion does not cite any constitutional or statutory law for enforcing appeal waivers or for exceptions thereto. Justice Thomas’s dissent notably complains that the Court “identifies no constitutional text, statute, or Federal Rule of Criminal Procedure that even suggests its miscarriage-of-justice exception,” but he likewise fails to cite to any constitutional text, statute, or rule that supports enforcement of plea deals that authorize and immunize lawless sentencing decision-making.

The absence of any clear law in Hunter has a number of potential downstream consequences. Without any grounding in tangible law, it is unclear if Hunter’s judge-made “miscarriage-of-justice” limit on the enforcement of sentencing appeal waivers may or may not be modified by Congress or the Sentencing Commission or the Federal Advisory Committee on the Criminal Rules. The ruling also leaves uncertain whether and how a miscarriage-of-justice rule could or should be applied by federal courts in other settings in which the parties may seek to preclude court review of criminal justice error. And whether the Hunter rule should or must apply in state courts as a limit on sentencing appeal waivers or other plea terms is likewise unclear given that federal constitutional doctrines must be followed in all states but doctrines based on federal statute, rule, or common law need not be.

The most immediate question after Hunter, of course, is just how federal courts will apply its miscarriage-of-justice limit on the enforceability of appeal waivers. Notably, the justices themselves already started dickering over Hunter’s reach in their separate opinions, and I hope lower courts come to recognize that there is actually some applicable law from the Sentencing Reform Act to consider here. In the SRA, Congress expressly and with particularity set forth terms for “Review of a sentence” in 18 U.S.C. § 3742. Remarkably, the specifics of this statutory law go entirely unmentioned in Hunter, even though this statute could have (and should have) provided a legal foundation for the Court’s analysis. Despite the Supreme Court’s failing, lower courts certainly should give this statute attention as they seek to apply Hunter across a range of cases.

By broadly authorizing appellate review of sentences, § 3742 of the SRA serves as a key mechanism furthering Congress’s commitment to law-based sentencing. This statute expressly authorizes both defendants and prosecutors to seek appellate review of a sentence based on a claim that the sentence was “imposed in violation of law” or “was imposed as a result of an incorrect application of the sentencing guidelines” or was above or below the applicable guideline range. In other words, to ensure sentences are imposed according to the law set forth in statutes and guidelines, Congress in the SRA set forth clear and broad authority for either party to seek appellate correction of all forms of legal or guideline errors.

This statutory structure for “Review of a sentence” is not only about protecting the interests of the parties, but also critical to Congress’s goal of having sentencing decision-making subject to law. Because Congress expressly authorized appeals of all claims of legal and guideline errors, district judges know they can be reviewed and reversed for any type of legal error at sentencing; appellate judges, in turn, are given a critical role in ensuring — not just for the parties but also for the public more generally — that federal sentencing decision-making is complying with federal sentencing law. Notably, while § 3742(c) provides a means for the parties to limit certain grounds for appeal of a “plea agreement that includes a specific sentence,” the statute still contemplates appeal of legal errors at sentencing even in such cases. Nothing in this section, or in any other part of the SRA enacted by Congress, countenances or even contemplates that the parties via a plea agreement can authorize and immunize lawless sentencing decision-making through a broad sentencing appeal waiver.

Of course, the federal sentencing system has evolved considerably since the passage of SRA, and the Guidelines’ legal status was transformed in 2005 when the Supreme Court in United States v. Booker declared them “effectively advisory” to remedy constitutional problems in their application. Interestingly, the ruling in Booker did not get a single mention in any of the opinions in Hunter, which is another notable omission by the justices given that the Booker Court’s remedial opinion discussed at length the importance of appellate review to the goals of the SRA. Specifically, that opinions stressed “Congress’ intent to provide appellate review” and asserted that “to eliminate appellate review entirely[] would cut the statute loose from its moorings in congressional purpose.” The Booker remedial opinion also emphasized the broader public purposes served by sentencing appeals, explaining that “appellate review [helps] to iron out sentencing differences” and that the Commission can “study appellate court decisionmaking [to] modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices [to] promote uniformity in the sentencing process.” Indeed, the Booker remedial opinion can be read as a clear statement that broad appellate review of sentences is an essential feature of the SRA and that any efforts to “eliminate appellate review entirely” would be entirely contrary to the congressional purposes and goals.

The statutory appeal provisions of the SRA, as well as the Booker Court’s discussion of appellate review, provide important context and direction for lower courts as they seek to give effect to the Hunter ruling. Lower courts must keep in mind that, to ensure sentencing decision-making is not lawless, Congress authorized appellate review for any sentence “imposed in violation of law” or “imposed as a result of an incorrect application of the sentencing guidelines.” In turn, as suggested by Justice Gorsuch’s concurrence in Hunter, appeals courts should be inclined to view any legal error — as opposed to, say, a claim related to the exercise of judicial discretion — to be the kind of error that would constitute a miscarriage of the kind of sentencing justice Congress sought to advance in the SRA. More broadly, federal courts of appeals must not only keep in mind the broad structural goals advanced by sentencing appeals, but also be deeply troubled by efforts or arguments that could possibly “eliminate appellate review entirely.”

Notably, the Court in Hunter states that “standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver” because “that kind of standard error is not likely to discredit the judiciary’s commitment to law.” But given Congress’s clear statutory commitment to authorizing appellate review of all legal and guideline errors, lower courts should not be quick to label any claims of consequential errors of sentencing law to be “standard-fare.” Put simply, for any consequential legal errors to go unreviewed will serve to undermine Congress’s commitment to sentencing based on law. And, in the words of the Booker court, it would also impede the Sentencing Commission’s work to advance “better sentencing practices [to] promote uniformity in the sentencing process.”

Because most lower federal courts have long seemed eager to enforce sentencing appeal waivers, I am fearful that they will now be eager to deem many asserted errors as “standard” so as not to escape the appeal-nullifying force of an appeal waiver. But § 3742 of the SRA contemplates broad authority to appeal all manner of legal and guideline errors, and circuit courts after Hunter should respect and give effect to the only democratically law operating in this context.

(1) In anticipation of the 40th anniversary of the Guidelines Manual and two decades of experience with advisory guidelines, the Commission intends to undertake an evaluation of the guidelines and federal sentencing practices in light of the Commission’s mission set forth in the Sentencing Reform Act, the statutory purposes of sentencing in 18 U.S.C. § 3553(a)(2), and relevant legal developments that have occurred in the past four decades. As part of this priority, the Commission may use regional public hearings, symposiums, roundtable discussions, conferences, and other tools to solicit input on the Commission’s work from various stakeholders, including judges, Congress, the Executive Branch, Federal Public Defenders, victims, sentenced individuals, and others.

(2) In anticipation of the 30th anniversary of the Commission’s Rules of Practice and Procedure, the Commission expects to undertake a comprehensive review of the Rules and consider whether any amendments to such Rules may be appropriate to further the agency’s statutory purposes and enhance public engagement with and understanding of the Commission’s work. As part of the priority, the Commission expects to review current practices and consider possible changes regarding: (a) what Commission work is conducted in public; (b) what Commission policymaking materials should be made public; (c) how stakeholder and public involvement is structured, including through rules about ex parte communications; and (d) what analyses supporting agency policymaking are conducted and released publicly.

. . .

Beyond the consideration of possible policy priorities this year, the Commission has chosen to not solicit public comment or hold a hearing on retroactivity. When the Commission submits amendments to Congress, it may decide to publish an issue for comment and hold a hearing on whether to make some or all of those amendments retroactive. See USSC Rules of Practice and Procedure 4.1. The Commission is not taking these steps for any of the amendments submitted to Congress on April 30, 2026. While three Commissioners may have voted in favor of making retroactive Amendment 2 (relating to inflationary adjustments) of the amendments submitted by the Commission to Congress on April 30, 2026, those votes alone would not have met the Sentencing Reform Act’s four-vote threshold for retroactivity. See 28 U.S.C. § 994(a)(2).

The proposed priorities recognize that the milestones the Commission notes demand something other than celebration; they call on us to reflect on what the Guidelines and the Commission have accomplished, where they have fallen short, and how both the substance of federal sentencing law and the Commission’s internal and external practices might be changed to better serve the purposes of sentencing and the cause of justice in the next generation.

This Substack is itself reaching a more modest anniversary: two years of trying to make sense of sentencing doctrine, data, and practice. To mark that occasion — and to contribute to the Commission’s renewed self‑study — we are reprinting, on successive Thursdays, the very first three essays published here two years ago. Each of them grapples with systemic questions that sit at the heart of the Commission’s proposed policy agenda: how a federal advisory guideline system might be better structured; the place for second-look sentencing in the federal system, now especially timely in light of the Supreme Court’s recent decisions in Rutherford and Fernandez; and why the Commission should issue a detailed, written, and reasoned opinion on when it applies guideline amendments retroactively.

These early essays were obviously written long before the latest round of proposed priorities and also before most of our subscribers joined our small community of learning. But the essays — and our Substack more generally — are animated by the same core concerns that now animate the Commission’s review: whether the Guidelines, as written and as applied, are promoting proportionality, reducing unwarranted disparity, and reflecting a full and deep understanding of what we have learned over decades of guideline sentencing. Reprinting them here, at a moment when the Commission is explicitly revisiting both the Guidelines Manual and its own rules, is an invitation to readers — and, we hope, to the Commission and other policymakers, too — to situate current debates within a longer arc of experience, critique, and reform.

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Why I Still Believe in Sentencing Guidelines (Just Not the Current Federal Guidelines)

July 8, 2024

I am thrilled to join Professors Berman and Chanenson in this new platform for commentary on sentencing law, policy, and practice. And I’m grateful to them for allowing me to join the wonderful corps of editors at the Federal Sentencing Reporter (FSR).

I had the great pleasure of spending time years ago with Professor Dan Freed, a founder of FSR, and visiting his sentencing program at Yale Law School. Freed was a giant in the world of sentencing, but more importantly, he was a gentle, soft-spoken, brilliant, and wise teacher. His combination of passion for sentencing and warmth towards others made him a uniquely effective educator. It was both a joy and a great learning experience to be in a classroom with him and with his colleagues like Professors Marc Miller, Kate Stith, and Nancy Gertner.

I have published many articles in FSR over the last 30 years or so, and it is now a genuine honor to be included among the editors of the journal Freed and Miller started so many years ago. I’m very much looking forward to editing issues in the coming years. And I’m grateful for the chance, in this forum here on Substack, to share some thoughts now and then on sentencing law, policy, and practice — and justice too.

- - -

Like many before me, I first fell into the rabbit hole that is federal sentencing law and policy as a practitioner. For me, it was in the late 1980s. I’ve been stuck in that hole ever since. Over the last thirty years, after serving as an assistant public defender and a federal prosecutor, I was on staff at the federal Sentencing Commission, but mostly part of the criminal justice policy apparatus at the U.S. Department of Justice across many administrations. For ten years, ending just about six weeks ago in May, I represented the Attorney General on the Commission. I was privileged to work with all the federal Commission Chairs: Judges Wilkins, Conaboy, Murphy, Sessions, Hinojosa, Pryor, Saris, Breyer, and Reeves. A raucous roller coaster ride indeed.

In addition to being a regular reader of FSR, I’ve been a follower of Professor Berman’s blog since it first appeared just as the Supreme Court was putting its finishing touches on Booker almost 20 years ago. Like FSR, the blog has been an indispensable companion to those of us who continue to grapple with the unanswerable questions surrounding the imposition of state-sponsored punishment on those who do wrong. Thank you, Professor, for the work you have put into keeping the blog going these many years.

I will have plenty to say in coming posts about the various Commissions and commission actions over the last 30 years. But I thought I would start with a few words about why I still believe in, and support the idea of sentencing guidelines, but not the federal sentencing guidelines as they are currently crafted.

In late March, Professor Daniel Kahneman, a Nobel laureate and a great psychologist and economist, died at age 90. I remember vividly, Commission Chair Patty Saris walking into a Commission meeting in the early 2010s carrying Kahneman’s best-selling book, Thinking Fast and Slow. She raved about the book and its insights on rationality, irrationality, and human decision-making generally; about how it exposed the foibles of the way we, flawed humans all of us, go about making choices in our professional and personal lives; and about the framework Kahneman lays out — thinking fast and slow — to understand how psychologically we go about our days and the choices we face.

I was first exposed to some of the psychological scholarship underlying Kahneman’s work — and how it applies to sentencing decisions — when I spent time at the Sentencing Commission in the 1990s with the late Professor Richard “Barry” Ruback. Barry was a Supreme Court fellow at the Commission when I was Deputy General Counsel there and when Judge Richard Conaboy began a project — a failed project would be a fair assessment — to simplify the guidelines. Barry, like Kahneman, was generous and giving and thoughtful. He would spend much of his career as a Professor of Criminology and Sociology at Penn State University. Barry knew psychology and taught me and others about heuristics and biases, noise and overconfidence, probabilities and risks, the frailties of human decision making, and how those frailties manifested themselves in judges imposing criminal sentences.

Barry and I would later write an article together, “The Federal Sentencing Guidelines: Psychological and Policy Reasons for Simplification.” It was published in 2001 in Psychology, Public Policy, and Law. It holds up pretty well today, all these years later, mostly because the psychological scholarship of Ruback, Kahneman, and many others — and their insights on human decision making, which are the foundation for the article — holds up well. And in marking the death of both Ruback and Kahneman, we ought to recognize their great contributions, including understanding how structured decision making — especially in a complex endeavor like sentencing, with conflicting goals, high stakes, and many factors to consider — will lead to more consistent, proportional, and goal driven results than unstructured decision making.

The insights of these scholars also reveal that while a structured and actuarial model of decision making will outperform most humans on consistency and along other dimensions, greater detail in the decision-making structure, like the federal Commission decided to incorporate in drafting the federal sentencing guidelines, does not necessarily bring with it greater validity across dimensions. In fact, much research suggests that attempts at greater precision will often lead to lower validity. This is the experience of the federal guidelines. The Guidelines were drafted to dictate precise sentencing outcomes, and many judges recoiled. But more than that, the attempts at precision ran into psychological and constitutional limitations. Especially now, 20 years after the Booker decision, it is time to revisit the guideline structure created by the first Commission.

The Guidelines are a case study in a failed attempt to use brute force — and too much precision — to get to particular algorithmic outcomes. Of course, there is another way to bring consistency and sound policy to sentencing decisions. As Richard Thaler and Cass Sunstein suggested in their best-selling book, Nudge, which was also drawn from Kahneman’s work, policy makers can create a less dictatorial choice architecture to try to move decision makers, like sentencing judges, in a particular direction. With psychological scholarship in mind, it is not difficult to imagine a simpler federal sentencing decision tree, one ironically with even greater richness than the current federal guidelines and yet simultaneously more understandable to all, including those being sentenced, the victims of crime, and the general public. One need only look to guidelines system of many states and certain foreign countries that have learned from the U.S. federal system what not to do. Most everyone familiar with the federal Guidelines can agree upon this: they are not nuanced; they are not a nudge; and they are not a model.

I’ve written a lot — for the Department and on my own — about the structure of the federal Sentencing Guidelines and how they might be reformed to lead to better sentencing outcomes. I will have more to say in future posts. But for now, I just want to remember Kahneman and Ruback and all of their psychologist and behavioral economist colleagues who shared insights that should drive the architecture of sentencing decision making and the use of sentencing guidelines.

More to come.

For those interested in crime and punishment, the publication of The New Jim Crow marked the moment when the country began to focus on the dramatic growth in the number of people incarcerated in the United States since the 1970s. When the book was published, violent crime rates had been dropping for nearly two decades from record levels, and yet incarceration rates were near their peak. The book was the national introduction of the phrase “mass incarceration” and transformed the way many — including many in the first Obama Administration, in which I was serving when the book came out — saw sentencing and corrections.

I went to Riverside Church to hear Alexander and her latest thoughts on how our country was responding to crime. But the day would turn out to be something very different; a series of unplanned and unexpected moments of grace and challenge too.

- - -

The gathering at Riverside was organized around the commemoration of a speech Martin Luther King Jr. delivered there 59 years earlier, on April 4, 1967. The speech, A Time to Break Silence, is less well-known than the I Have a Dream speech, but in some ways is even more searching in its moral demands.

Here is how Tippett described the significance of the speech —

None of the words of this speech is as famous as the sentence “I have a dream.” This speech altogether gives voice to the less remembered and heeded evolution of the vision of Dr. King and Vincent Harding and others. It invokes the work that endures beyond leaders and events of the day, and that can be neglected at our peril if too many of us too narrowly focus our imaginations and creativity and callings on what transfixes and demoralizes in the moment.

It calls for a “revolution of values” in the face of glaring contrasts of poverty and wealth and the human cost of a world order that settles differences with wars. That our world is broken, it tells us, should come as no surprise. There were deep moral and spiritual underpinnings to the events of 59 years ago, which we did not acknowledge, much less have risen to as a nation.

A diverse set of distinguished guests read excerpts from the speech. You can read the full speech here. Its words reverberate in our time and with what we are experiencing now. The last of the readers was Professor Cornel West, who covered the closing paragraphs and invited those in attendance to join him in the very last lines.

Here is a bit fuller portion of the ending of the speech.

We are now faced with the fact, my friends, that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there is such a thing as being too late. Procrastination is still the thief of time. Life often leaves us standing bare, naked, and dejected with a lost opportunity. The tide in the affairs of men does not remain at flood — it ebbs. We may cry out desperately for time to pause in her passage, but time is adamant to every plea and rushes on. Over the bleached bones and jumbled residues of numerous civilizations are written the pathetic words, “Too late.” There is an invisible book of life that faithfully records our vigilance or our neglect. Omar Khayyam is right: “The moving finger writes, and having writ moves on.”

We still have a choice today: nonviolent coexistence or violent coannihilation. We must move past indecision to action. We must find new ways to speak for peace in Vietnam and justice throughout the developing world, a world that borders on our doors. If we do not act, we shall surely be dragged down the long, dark, and shameful corridors of time reserved for those who possess power without compassion, might without morality, and strength without sight.

Now let us begin. Now let us rededicate ourselves to the long and bitter, but beautiful, struggle for a new world. This is the calling of the sons of God, and our brothers wait eagerly for our response. Shall we say the odds are too great? Shall we tell them the struggle is too hard? Will our message be that the forces of American life militate against their arrival as full men, and we send our deepest regrets? Or will there be another message — of longing, of hope, of solidarity with their yearnings, of commitment to their cause, whatever the cost? The choice is ours, and though we might prefer it otherwise, we must choose in this crucial moment of human history.

As that noble bard of yesterday, James Russell Lowell, eloquently stated:

Once to every man and nation comes a moment to decide,
In the strife of truth and Falsehood, for the good or evil side;
Some great cause, God’s new Messiah offering each the bloom or blight,
And the choice goes by forever ‘twixt that darkness and that light.
Though the cause of evil prosper, yet ‘tis truth alone is strong
Though her portions be the scaffold, and upon the throne be wrong
Yet that scaffold sways the future, and behind the dim unknown
Standeth God within the shadow, keeping watch above his own.

And if we will only make the right choice, we will be able to transform this pending cosmic elegy into a creative psalm of peace. If we will make the right choice, we will be able to transform the jangling discords of our world into a beautiful symphony of brotherhood. If we will but make the right choice, we will be able to speed up the day, all over America and all over the world, when “justice will roll down like waters, and righteousness like a mighty stream.”

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Saxophonist Langston Hughes II then took to the well of the church and performed Take My Hand, Precious Lord. Precious Lord was Dr. King’s favorite hymn. Mahalia Jackson regularly sang it at his side at civil rights rallies across the South. She sang it, too, at King’s funeral in April 1968. It was written in response to inconsolable bereavement that followed the deaths of the author’s wife and infant.

This is its first verse —

Precious Lord, take my hand,
Lead me on, let me stand,
I am tired, I am weak, I am worn;
Through the storm, through the night,
Lead me on to the light:
Take my hand, precious Lord,
Lead me home.

And here is Hughes’ performance that morning —

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Then came the conversation between Tippett, Alexander, and Lucas Johnson, an organizer and public theologian. Johnson is traveling the country now, evoking stories about the movements that expanded American democracy and raising the question “Is America possible?” in this 250th year since the Declaration of Independence. You can hear the full conversation between the three here. It’s worth a listen.

My takeaway from the conversation was mostly in the honor the three paid the legacies of both King and Harding and their challenge to us to engage with them. Alexander and Johnson recalled their mentorship under Harding. They spoke of the need for a “revolution of values.” They reminded us that merely focusing on the demoralizing and transfixing news cycle causes us to lose sight of — and then neglect — the long and endless struggle of expanding democracy, the need to heal the trauma around us, and the imperative to regularly reevaluate and restructure our moral priorities.

For me, their discussion gave greater significance and meaning to the exhibit I had seen earlier that day at the Cathedral of St. John the Divine that told the story of men serving life imprisonment sentences at the Louisiana State Penitentiary who found a way — through a hospice program and creating quilts to support it — to let grace break through and to serve other inmates who were dying in their midst. You can read more about all that in the first of the Holy Week series of posts —

It seemed as though the men who stitched quilts for the dying were, in their own constrained and hidden way, living out the “revolution of values” Harding and King had called for — refusing to let prison and their pasts define the limits of their humanity. That quiet act of tending to the suffering right in front of them, of insisting on beauty and care inside a system built on punishment, echoed what Alexander and Johnson were urging: that we not be paralyzed by the headlines or the immediacy of what’s right before us, but rather commit ourselves to the slow, unseen work of healing, solidarity, and moral reordering.

So what began as a trip to hear Alexander talk of crime and punishment had morphed into a larger confrontation with persistent and difficult moral questions — personal and national — and a discovery of the beauty and grace that can be summoned as we face them. King called that confrontation “the fierce urgency of now” and implored us to ask ourselves how we will respond to it? For me, all of that Holy Saturday was an expression of stubborn hope in America and its promise. Is America possible, asks Lucas Johnson. I think so, if only because at its foundation is a never-ending and difficult struggle in the quest for a great and gracious ideal.

Happy birthday, America!

Happy birthday, America!

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[COLD OPEN]

[Fade in as SKIP and GEORGE, two middle‑aged men wearing unremarkable, inexpensive, and slightly wrinkled suits, walk down a long, ornate hallway on the fifth floor of the Main Justice Building. The ceiling is high, the lighting is dramatic, and the walls are lined with huge portraits of former Attorneys General glowering down.]

Superimpose: “March 2025”

[In front of them, a sleek pack of younger lawyers in crisp, perfectly tailored suits and a few twenty‑something men in hoodies and jeans march toward two massive paneled wooden doors. A sign outside reads: “ATTORNEY GENERAL’S INTERNATIONAL CRIME SUMMIT.”]

GEORGE —

You ever notice the doors get bigger the further you are from doing any actual work?

SKIP —

It’s like a Narnian wardrobe for budget requests.

[The young lawyers and hoodie guys flow into the grand conference room. SKIP and GEORGE drift past, peeling off toward a single, smaller, very ordinary wooden door a few yards down the hall. The sign on this door is printed on regular copier paper and slightly crooked. It reads: “OLC – INTERNAL STATUTORY INTERPRETATION MEETING.”]

GEORGE —

Summit goes left to save the world.

[Gestures to the plain door.]

We go right to argue about commas.

SKIP —

Commas keep the world from burning, George.

[Beat.]

Just not the cool parts.

[They enter. INT. SMALL CONFERENCE ROOM. Seated near the head of a modest conference table is DORIS, an older lawyer in an outdated but neat suit. She has the energy of someone who has outlasted twelve administrations and is not impressed by the thirteenth.]

[Jammed around the rest of the table are EIGHT COAST GUARD OFFICERS in full dress uniform. It looks like a recruitment poster accidentally printed inside a supply closet.]

[At the far end of the table sits SPARK FLANNERY (23), in a tight, slightly too‑small suit jacket over a tech‑company hoodie. Expensive sneakers. A smartwatch. Laptop open with dozens of tabs; a sticker on the lid says “MOVE FAST AND BREAK BUREAUCRACY.”]

SKIP (as he walks in) —

Hey, Doris.

DORIS (politely, affectionately) —

Good to see you, Skip.

SKIP —

How’s the family?

[DORIS stares at him. Beat. She says nothing.]

SKIP (deciding not to follow up) —

Right. Good talk.

[SKIP takes the chair at the head of the table. GEORGE slides into the seat immediately to SKIP’s right.]

SKIP —

What’ve we got, Doris?

DORIS (deadpan) —

Salmon sex.

[Beat.]

GEORGE (pleasantly incredulous) —

Pardon me?

DORIS (with slow, exaggerated patience) —

Georgy — it works like this: there are salmon — you know, fish — and then they reproduce.

GEORGE —

And this is why you’re wasting our time?

SKIP —

Okay, easy. Let’s not start with the “fish are people too” fight. Why do the two of you irritate each other so much?

GEORGE —

I’m just asking why we’re not in the big room with the global cyber cartel people.

DORIS —

Because those people wear fitted suits and can use TikTok.

SKIP —

All right. How about we go around the room and do introductions before anyone insults an entire generation. I’m Skip Justice. I’m the Director of Policy Review at the Office of Legal Counsel here at DOJ.

GEORGE —

I’m George Jackson. I’m Doris’ emotional support human and Skip’s Deputy.

[The COAST GUARD OFFICERS straighten as if on cue.]

COAST GUARD OFFICER #1 (Formally; with emphasis) —

I’m Joseph Deary, sir. Deputy Chief for Strategy and Compliance, Northwest Operations Branch.

COAST GUARD OFFICER #2 (Looking straight ahead, unflinching) —

J. Josh Knight, sir. Associate General Counsel for Policy.

[SKIP leans subtly toward GEORGE and whispers.]

SKIP —

Why don’t you ever call me “sir”?

GEORGE —

I tried once. You forwarded me to voicemail.

COAST GUARD OFFICER #3 —

Jennifer Ford, sir. Senior Liaison Specialist, Office of Intergovernmental and Public Affairs.

COAST GUARD OFFICER #4 (excited, talking too fast) —

James Chin — and let me say what a thrill it is to be here. I was an intern at the Department after my first year of law school, and I really —

COAST GUARD OFFICER #1 (snapping) —

Lieutenant Chin! Get a grip. Name and rank only.

COAST GUARD OFFICER #4 (deflating slightly) —

James Chin. Coast Guard Solicitor’s Office.

COAST GUARD OFFICER #5 —

Rebecca Daniels, sir. Office of the Commandant.

COAST GUARD OFFICER #6 —

Tashanda Jones, sir. Office of the Deputy Commandant.

COAST GUARD OFFICER #7 —

Arun Ramaratnan, sir. Office of the Associate Commandant.

COAST GUARD OFFICER #8 —

Larry Winters, Jr., sir. Associate Counsel, Office of Environmental Policy Development and Implementation.

[As the introductions go on, GEORGE’s eyes get wider.]

GEORGE (aside to SKIP) —

Are we sure we’re not invading Norway?

[MEGAN clears her throat, eager to jump in.]

SPARK —

Spark Flannery, DoGE. Department of Government Efficiency.

GEORGE –

What?

SPARK –

DoGE. D‑O‑G‑E. We’re like . . . if McKinsey, a venture fund, and a TED Talk had a baby and forced it to do federal service.

GEORGE —

That sounds . . . illegal.

SPARK —

We optimize. Deputy AG spun us up to bring “start‑up energy” to legacy institutions.

[Gestures proudly at the wall of COAST GUARD OFFICERS.]

So, when the Coast Guard says a case matters, DoGE listens. We love the military. Huge synergy opportunity.

GEORGE —

They’re . . . the Coast Guard. This was your idea to bring eight of them?

COAST GUARD OFFICER #1 (offended) —

We’re one of the eight uniformed services, sir.

GEORGE —

Right, no, huge fan of the . . . buoys.

SKIP (trying to deescalate) —

We’re all very grateful for your service. Especially here, defending America from . . .

[Glances at DORIS’ folder.]

. . . inter‑salmon intimacy.

SPARK —

From an efficiency standpoint, this is actually huge. If we can streamline salmon enforcement, we can repurpose resources across the entire aquatic portfolio.

GEORGE —

Our top priorities now include . . .

[Checks notes.]

. . . fish foreplay.

DORIS (dry) —

Over‑criminalization, George. Stay on message.

[Just then, there’s a knock on the conference room door. Everyone looks over, tense, as if it might be the Attorney General herself. GEORGE gets up, opens it, and instead a short, eager 16‑year‑old in a too‑big sailor suit enters and sits in a chair along the wall.]

GEORGE (heading back to his seat) —

DoGE team — Great work. Any more coming?

SKIP —

Doris, I love you. Please introduce yourself.

DORIS (saluting, disdainfully; then with sarcasm) —

Doris King, sir. Environmental and Natural Resources Division, Appellate Section. Here to keep the Republic safe for fish sex.

SKIP (to the kid) —

And who are you?

COAST GUARD INTERN –

I’m Jonah. I’m interning with E-N-R-D. Sort of a detail assignment. This place is incredible.

GEORGE (flat) —

Aim higher, Jonah.

SKIP —

Thanks for being here, Jonah.

[Turns back to DORIS.]

Okay, Doris. What have we got?

DORIS —

Last week, Judge Kob on the Ninth Circuit decided to play a little joke on us. We convicted a seventy‑five‑year‑old man who was fishing in Oregon, and Kob reversed and said we’d misinterpreted the statute we used. Over‑criminalization, he said.

GEORGE —

What did this seventy‑five‑year‑old man do?

DORIS —

He was interfering with salmon during their mating season.

[Beat. GEORGE squints, trying to visualize it.]

GEORGE —

What was he doing, Doris?

[CUT TO: a quick visual gag — an OLD MAN standing in a raging river in full fishing gear, fly rod in one hand, slapping at the water with the other.]

OLD MAN —

Stop that!

[CUT BACK TO THE ROOM.]

DORIS —

What didn’t you understand, Georgy? He was interfering with the fish going at it.

SKIP (looks between DORIS and GEORGE) —

How old are the two of you?

[He turns to the COAST GUARD side.]

Captain Deary, can you please tell us what actually happened?

COAST GUARD OFFICER #1 —

The case is United States v. John Borman, sir. Mr. Borman was fly fishing in the Clackamas River in Oregon. His fly got tangled in the line of a couple of east coast hedge fund managers who were out there for a little R&R. They had a bit of a disagreement.

[While the Officer is speaking, the scene shifts back to the old man standing in the river, but now he’s fly fishing, waving the fishing rod, when two other fishermen across the river begin yelling at him. Then, the scene shifts back to the conference room.]

SKIP —

What do you mean disagreement?

COAST GUARD OFFICER #1 —

You see the hedge fund managers had spent a lot of money at Orvis and had bought the Platinum Wooly Bugger Premium flies and the old man’s line weights ended up damaging the platinum.

[Beat.]

SKIP (puzzled) —

So?

COAST GUARD OFFICER #1 —

Well they got the tour guide to go after the old man and they had a fight in the river.

[The scene shifts to the fight in the water. Then back.]

DORIS —

And when the Bureau of Land Management rangers arrived, the old man was arrested.

INT. CONFERENCE ROOM – LATER

[On the white board, in SKIP’s messy handwriting: “18 U.S.C. § 2225(a) — Interference with Salmon During Mating Season.” Underneath, someone has drawn two stick‑figure fish with a big red X through them.]

SKIP (turning away from the white board) —

Okay. What about the fight? Wasn’t that the crime? What about the tour guide?

COAST GUARD OFFICER #2 —

They weren’t technically on federal land, sir. And some of our folks raised questions about the applicability of navigable waters law. So all we could charge the old man with was 2225(a).

GEORGE (blank) —

Right. The . . . fish‑interference thing.

SKIP —

Doris, why are we here?

DORIS —

Judge Kob says that to find a defendant guilty of 2225(a), we have to catch the defendant interfering with the salmon at the exact moment of copulation.

[Beat as everyone processes this.]

GEORGE (slowly) —

The exact moment?

COAST GUARD OFFICER #4 —

And this is going to present practical difficulties for law enforcement. And it has implications for lots of other statutes.

SPARK —

Right now, the process is super analog. We’re talking eyeballs‑on‑fish. DoGE is looking at a sensor‑based solution. Computer vision, machine learning, maybe a salmon‑as‑a‑service pilot.

GEORGE —

We’re going to put body cams on trout?

SPARK —

If they clear procurement, sure.

GEORGE (exaggerating concern) —

Really? Difficulties for law enforcement. Can you describe for me how salmon —

SKIP —

What?

GEORGE —

You know . . .

[He makes the fist‑moving‑forwards‑and‑back gesture.]

[Several COAST GUARD OFFICERS shift uncomfortably. One takes a sip of water and chokes.]

COAST GUARD INTERN (JONAH) –

Actually, the mating ritual is quite an elaborate undertaking —

GEORGE —

Of course you know this, Jonah.

COAST GUARD INTERN —

They return to their natal streams, dig redds in the gravel, and then the females release—

SKIP (holding up a hand) —

Okay, Biology Channel, we got it.

DORIS (unfazed, flipping through the opinion) —

Kob literally writes: “Congress cannot have intended criminal liability to attach absent contemporaneous interference with active reproductive activity.”

GEORGE (reading over her shoulder) —

“Active reproductive activity.” That’s in the Federal Reporter now?

DORIS —

Volume and page cite, Georgy. Posterity.

SPARK —

And the Commandant believes we should respond aggressively.

GEORGE —

By aggressively . . . watching fish?

COAST GUARD OFFICER #1 (gravely) —

We’re exploring dedicated salmon surveillance teams, sir.

GEORGE —

So the statute now requires a . . . what, a federal fish midwife?

SKIP (dry) —

Is there a certification exam for that?

COAST GUARD INTERN —

I’d totally apply.

SKIP (pinches the bridge of his nose) —

All right. Let’s focus. Doris, what does DoGE actually want us to do about this?

DORIS (Beat) —

Fix 2225(a) so we can keep locking up old men who annoy horny fish.

[Everyone stares at her.]

GEORGE —

And they say public service doesn’t have any glamour.

[START TO FADE as the room descends into overlapping legal and biological jargon.]

COAST GUARD INTERN (O.S.) —

— and then, once the milt is released—

GEORGE (O.S.) —

Please, for the love of God, stop saying “milt.”

[FADE OUT.]

INT. SKIP’S OFFICE – LATER

[FADE IN from the conference room chatter. SKIP is now in his cramped office, on the phone. Legal pads and half‑empty coffee cups everywhere. GEORGE is on the couch, scrolling on his phone, bored.]

SKIP (intense but polite) —

Channing, I know the Coast Guard Commandant called the Attorney General. And I’ll do what I can. But this case wasn’t even on the coast. It was up the Clackamas River. Why does the Coast Guard even care?

[Pause as SKIP listens. GEORGE mimes along: “national security,” “optics,” “the base,” etc.]

SKIP —

I know the Commandant likes to fish. But don’t you think it’s a bit of overkill to make 2225(a) a racketeering and money laundering predicate? This isn’t exactly organized crime.

[Beat. SKIP pulls the phone slightly away from his ear as CHANNING steamrolls him.]

SKIP —

Right. Yes. “Fish are people too.” I remember the talking points.

[Longer pause. SKIP’s shoulders sag.]

SKIP (resigned) —

I’m sorry, Channing. I’ll get it done.

[He hangs up, stares at the phone.]

GEORGE —

So . . . good news, the Republic is safe?

SKIP (deadpan) —

We’re adding salmon sex to the RICO menu.

GEORGE —

Great. The mob gets murder, extortion, drugs. Our guy gets . . . spawning.

SKIP —

Welcome to priorities.

[Before GEORGE can respond, the office door flies open. SYDNEY, early 30s, sharp suit, slightly out of breath, bursts in holding a folder and a phone.]

SYDNEY —

I got a read‑out of the AG’s Crime Summit from the Deputy Attorney General’s Chief of Staff.

[She clocks GEORGE on the couch, freezes, then looks to SKIP like she’s just walked into a crime scene.]

GEORGE —

Okay. So, what happened?

[SYDNEY hesitates, looking between them.]

SYDNEY —

This is super close hold, George. I don’t know . . .

GEORGE (offended) —

Really?

SYDNEY —

I mean it’s really, really, super, super close hold.

GEORGE —

Is there, like, a scale? “Close hold,” “really close hold,” “oh‑my‑God‑if‑you‑breathe‑it‑we‑kill‑you hold”?

SYDNEY—

This is above “oh‑my‑God,” but slightly below “destroy‑after‑reading.”

[She hugs the folder closer.]

SKIP —

Sydney. Can I speak with you over here? Privately.

[SYDNEY walks over to SKIP’s desk. On the way, she instinctively turns the folder so the tab faces away from GEORGE, as if he can read through paper.]

[She leans in. SKIP keeps his voice low but audible.]

SKIP —

I appreciate your diligence, Sydney. I know how sensitive the meeting was; after all, none of us were invited to it.

[He glances at GEORGE, who gives a sarcastic little wave.]

SKIP —

But I’ve known George a long time. He has a temper and some other faulty traits, like we all do.

SYDNEY (whispers) —

Like telling people that something is “super, super close hold” and then immediately blabbing it to the intern?

GEORGE (from the couch) —

The intern was sworn in under penalty of snack loss.

SKIP —

Come to think of it, don’t you think we’re all a little quirky? Really?

SYDNEY (considering, grudgingly) —

You once filed a brief with a typo in the word “United.”

SKIP —

Exactly. Deeply flawed. And yet: George is a decent guy. I think we can trust him.

SYDNEY (beat, then louder, to include GEORGE) —

Fine. But this is need‑to‑know. And you don’t need to know; you’re just going to find out anyway.

GEORGE —

That’s my whole career in one sentence.

[SYDNEY reluctantly opens the folder, still shielding it a bit.]

SYDNEY —

All right. Top line: at the Summit, the AG said the Department’s going to “ruthlessly prioritize” transnational crime, cyber threats, and “emerging non‑traditional risks.”

GEORGE (dry) —

Please tell me “emerging non‑traditional risks” includes geriatric Oregonians and their complicated relationships with salmon.

SYDNEY (checks notes) —

Actually . . . the Coast Guard presentation did have a slide about “maritime ecosystems as critical infrastructure.”

GEORGE (to SKIP) —

You see? We are national security. We’re just . . . slippery about it.

SKIP —

All right. Give us the rest, Sydney. Slowly. It’s super, super close hold, remember.

[Three ring tones go off in the office, simultaneously. And the three each take out their phones. On each phone is a notification from Politico’s X account announcing that the International Crime Summit has concluded, and the President will be announcing a new initiative to stop sexting among middle and high schoolers.]

[GEORGE looks up from his phone.]

GEORGE —

No. I think you guys should speak alone. It’s really, really, super, super close hold. I’m going to head to the gym.

SKIP —

What’s the weather like outside today, George?

GEORGE (smiling) —

It’s really sweet Skip. About 50 degrees . . . and virtually no wind.

SKIP —

Let’s talk later, Sydney. You can catch us up on the details of the summit. Gotta go.

[Just then, as SKIP begins gathering some athletic gear from around the room, he receives another notification on his phone. He looks at the phone, stops abruptly in his tracks, and then looks up at GEORGE, horror on his face.]

[Pause.]

SKIP —

It’s a meeting invite from the Deputy Attorney General’s Office. DoGE wants to meet with me this afternoon.

[Pause.]

GEORGE —

Oh shit.

SKIP —

And the subject line says, “Confidential Personnel Matter.”

GEORGE —

Not good.

[Cut to opening sequence and credits. Pictures of the engravings on the Justice Department Building. Scenes around Washington. Ends with a close up of a computer screen, on which gets typed — “We are committed to working with you to improve justice across the land. Sincerely, Skip E. Justice”]

- - -

This show is a work of fiction. The characters and events are made up. Any references or similarities to real people, living or dead, or to real government agencies, companies, events, establishments, or places are there only to give the story some texture and are used fictitiously. All other names, characters, places, dialogue, and incidents are products of my imagination and should not be taken as real.

- - -

Teaching sentencing is tricky. This is because, as I described in a previous Sentencing Matters essay some months ago, sentencing is typically an “art” as well as a “science.” One must understand the frequently complex rules and procedures (the science) without losing sight of the often more daunting responsibility to pursue justice through the principled exercise of discretion (the art).

So, how should sentencing be taught? There is no one-size-fits-all answer beyond engaging with both the art and the science.

The Standard Approach Can Work

The most conventional approach to a standalone sentencing course — either in a semester-long setting or a short-form one-off — is a lecture-based experience relying on appellate cases and some hypothetical problems. This is a time-tested strategy in American law schools and is likely familiar to instructors and students alike. In its most bare-bones version, this can be little more than any other rules-based exploration. For example, the statutes and guidelines require a six-month prison sentence for a given offense, plus an additional four months for a certain factor, but it cannot be paired with some other condition. That rules-only (or rules-dominant) tactic is insufficient.

If, however, such a course takes a broad view, the conventional approach can be useful. Unless required by (unfortunate) statutes, sentencing should never be purely mechanical. I remain persuaded by Professors Marc Miller and Ronald Wright, who wrote this in their aptly named article Teaching Holistic Sentencing:

We believe the separation between the teaching of sentencing rules and the teaching of sentencing principles is a false split. While a person can be instructed about sentencing rules and how to apply them to particular facts, any effort to teach sentencing requires the “student” (be she a judge, lawyer, probation officer, law school student, or citizen) to consider ideas of justice and process.

…

[Students] must understand sentencing as an integrated whole, rather than a sequence of parts.

Fortunately, there are now several good law school textbooks, including my favorite one, that chart an art-and-science path for instructors to follow. Teaching a conventional class holistically is an admirable and worthy achievement. But a deeper dive — one that requires (and amply rewards) significant time and resources — is possible.

Introducing the Sentencing Workshop Concept

The Sentencing Workshop is the most robust art-and-science approach to teaching sentencing I know. It views the science — the largely objective mechanics of sentencing in the relevant jurisdiction — as a necessary, but not sufficient, condition for effective teaching of sentencing. Rather, it forces the participants to wrestle with the art — the actual practice and responsibility of sentencing discretion — as well, in near-real-life situations.

My understanding of this method stems from the Sentencing Workshops offered by the legendary, late Yale Law School Professor Dan Freed. These Workshops gathered law students, judges, and other professionals to pore over real but redacted cases in great depth. The Sentencing Workshop approach to the case method is different than the typical law school course as it doesn’t rely on appellate decisions. In fact, it rarely considers written judicial decisions at all. Rather, it places the student in a simulation as a sentencing judge. This includes accompanying materials such as police reports, trial transcripts, pre-sentencing investigation reports, psychiatric reports, letters from lay people (e.g., victims, defendant’s family members), sentencing memoranda, and sentencing transcripts. Law students who could previously keep the messiness of sentencing at arm’s length with a steady diet of sanitized appellate decisions now must roll up their sleeves and embrace most of the reality facing sentencing judges.

Yale Law’s then-Dean put it this way during Dan’s memorial service:

He challenged his students to engage not only with doctrine but also with real social change, to understand not only the law as written but also the people who administered it, to believe in law reform but also to critically evaluate it.

Sentencing workshops are a valuable tool, even for the initiated and informed. As I have discussed elsewhere, the workshop’s primary goal is to encourage all participants to peel back their own blinders. This was the brilliance of Freed’s Workshops. The effect was profound, as noted by retired U.S. District Judge Nancy Gertner, who participated in one of Dan’s Workshops while on the bench and later helped him run them. She reflected: “What had seemed like simple issues suddenly had many complex layers. I was participating in conversations about sentencing dimensions more sophisticated and nuanced than any I had heard in my courtroom or at judicial conferences.”

There is one more critical component to Dan’s teaching methodology. Yale Law’s Kate Stith has astutely noted that “Dan had impact not only because of the power of his ideas but also because of his character and his belief in the good faith and capabilities of policymakers, officials, citizens, and students.” That presumption of good faith was more than just a reflection of Dan’s personality; it was an educational strategy. It allowed participants to disagree — sometimes passionately — without accusing others of mendacity or malevolence. Attacking someone’s motives or integrity is not conducive to open-minded discussions or productive dialogue. That is just one of many Dan Freed lessons I have tried to internalize in my teaching and my life more broadly.

University of Minnesota Law Professor Bob Levy embraced the sentencing workshop approach, ran his own Workshop for 15 years, and persuaded professors at several other schools (including me) to try this model over the years. Like Dan Freed before him, Bob drew from an ever-changing array of jurisdictions across the nation. Sometimes, judges and lawyers would all hail from the same state, while other years, there would be a mix of judges from different parts of the country. Including different systems highlighted the diversity of approaches nationally, but I wonder whether it allowed for as much depth as a single-system focus.

Creating the Villanova Sentencing Workshop

In an effort to entice me to start my own workshop, Bob invited me to be a fly on the wall at his 2001 Workshop in Minnesota. I quickly determined that this model was worth trying, and, with some seed funding from Bob, I started the Villanova Sentencing Workshop (VSW) in 2002. It has been running annually ever since. I am already working on logistics for the 25^th annual iteration of the VSW starting in February 2027.

From the beginning, the VSW honored the groundbreaking principles of Yale and Minnesota while charting its own path.

One distinction is that the VSW was always designed as a Pennsylvania-focused project. There are more than enough ambiguities in the Byzantine Pennsylvania sentencing laws and practices to keep us busy. Furthermore, as I work at a Pennsylvania law school, focusing exclusively on the Keystone State allowed me to best serve my students, my judiciary, and my fellow Pennsylvanians.

I was also fortunate enough to find and maintain active co-sponsors in the Commonwealth. I quickly joined forces with the Pennsylvania Commission on Sentencing, of which I became a member after starting the Workshop. I have relied heavily on Commission leaders, first Executive Director Mark H. Bergstrom and now Senior Deputy Director Ryan S. Meyers. For many years, I have also benefited from the support of the Administrative Office of the Pennsylvania Courts’ Judicial Education Department, which has been led by Stephen M. Feiler and Darren M. Breslin. It is impossible to overstate the value of these allies in the Workshop’s long-term success. The VSW is an independent academic enterprise, but it draws on the resources and reach of these governmental partners. The Commission provides focused pre-session training for the law students and ensures that the Workshop conversations align with the ever-evolving Guidelines and the Commission’s cutting-edge research. For example, VSW participants engaged in early and in-depth discussions about the proper role of risk, needs, and responsivity assessments. The Judicial Education Department has helped us remain informed about other approaches to judicial education for an always-renewing statewide bench.

A notable difference between Bob’s approach and my own is how we see the professor’s role as workshop facilitator. Bob wrote that:

in facilitating the discussions, I could not, and didn’t try, to hide my own values. … I hoped that the judge[s] knew, and I was sure [they] would eventually conclude, that I would never try to impose what some would consider [my] radical views on other participants in the Workshop.

In contrast, I never describe one sentence as better than another, as long as it is lawful and supported by some justification. [Simply saying, “We’ve always done it this way,” is never the right answer.] As noted below, I revel in the professorial prerogative of taking inconsistent positions designed to challenge all participants, regardless of their sentences. Whether to broadcast or bury one’s own views as the instructor is a perennial pedagogical debate. Some colleagues I deeply respect believe that we cannot hide our personal views and consider it pointless to try. I disagree. While I don’t know for certain that I am right, I take comfort in the regular pleas from both law students and professional participants in the Villanova Sentencing Workshop to learn how I would have sentenced a particular case.

Operating the Villanova Sentencing Workshop

As Marc Miller and I wrote years ago, “Sentencing must be learned, and it cannot be learned solely from books any more than riding a bicycle or flying a plane can be learned exclusively from books.” Real-life practice — even in an imperfect, simulated setting — is essential. The VSW offers learning far beyond books.

Who is at the table? Although the precise numbers vary slightly from year to year, the current VSW typically includes six Pennsylvania Common Pleas (i.e. general jurisdiction) Judges, an elected District Attorney or senior Assistant District Attorney, a Public Defender or senior Assistant Public Defender, two Members of the Pennsylvania Parole Board, a corrections expert, representatives from the Pennsylvania Commission on Sentencing and the Courts, and a law professor. More than 15 years ago, Mark Bergstrom suggested that we include members of the Pennsylvania Parole Board in the VSW. That was a stroke of genius as it broadened our scope, embraced the reality that parole release is part of the sentencing ecosystem, and helped to facilitate an ongoing dialogue between the judiciary and the Board.

The VSW allows all the participants a glimpse into what happens when a judge must consider everything, including but not limited to the law, the facts (of the case and the individual before the court), the needs of the community, and the societal context, and then produce a concrete sentence. No equivocating. No approximating. An actual, lawful sentence is required.

Similar to Bob’s formatting, I solicit cases from the participating judges that they found interesting or challenging to sentence. After the VSW team sorts, selects, and redacts the case materials, we calculate guideline recommendations. With that, the participants sentence each case (unless they imposed the sentence in real life) without knowing the actual sentence imposed. The participants provide a brief explanation for each sentence, explaining in their own way how the sentence is rational, fair, and proportional. All of this serves as grist for my role as facilitator and interrogator. After a thorough, often lengthy discussion, the sentencing judge reveals the actual sentence and explains what motivated the decision. Additional conversation usually follows before we move on to the next case. With nearly a quarter-century of case files, we sometimes reuse older cases without the sentencing judge present to cover a wider range of substantive issues.

The VSW meets for two multi-day sessions during the spring semester. We typically start with lunch on Thursday, work on cases until 5:30 pm, and then convene for dinner with a guest speaker. Those speakers have included such luminaries as judges (from Pennsylvania, other states, and the federal system), the Secretary of Corrections, the Chair of the Parole Board, state legislators, law professors, and formerly incarcerated individuals. We resume our case discussions for a full day on Friday (allowing for meal and comfort breaks) and for half a day on Saturday. About six weeks later, we do it all again.

Here, in abbreviated form, is what I tell the assembled group at the start of our first session.

1. A key purpose of this Workshop is to exchange ideas, learn from one another, and see how others think about the same issues.

2. For students, there is the additional goal of learning more about sentencing law and the Guidelines themselves. They all participated in an excellent sentencing bootcamp from the Commission. Yet there were circumstances in which the students made errors. Perhaps the judges see this with new lawyers in their courtrooms. With luck, these particular errors from these particular soon-to-be lawyers won’t make it into anyone’s courtroom as they are addressed here.

3. For judges and other non-student professionals, there is the additional goal of an opportunity to get away from the daily pressures of the bench or office and reflect on the important work that you do every day. Perhaps seeing something in the students’ unpolished, unjaded views may give you new insights. I hope you will also learn from your colleagues’ experiences.

4. My role is to facilitate and to prompt, perhaps to goad and to challenge.

5. My role is NOT to proselytize for one particular sentencing philosophy.

6. I will take inconsistent positions.

7. I will play Devil’s Advocate.

8. My goals are:

   1. For people to think about things in a way that they may not have considered before.

   2. To encourage people to reevaluate long-held views and, as appropriate, defend or repudiate them.

9. Candor is important. So, confidentiality is non-negotiable.

Tips and Tricks

Like many other states, Pennsylvania’s criminal justice system is largely county based. As the Commonwealth’s former Chief Justice Ralph Cappy is reported to have said: “Pennsylvania has a unified judicial system, not a uniform judicial system.” Practices vary from county to county. In part, that reflects customs, which are worth examining. In part, that reflects the reality of different resources, both financial and programmatic. The VSW intentionally includes judges from across our heterogeneous state. We have judges from big counties (e.g., Philadelphia with about 1.57 million people) and small counties (e.g. the judicial district comprised of Elk and Cameron counties with a combined population of just over 34,000).

Of course, even within the same courthouse, judges (let alone lawyers) can have different priorities when considering the purposes of punishment. Those differences can result in philosophical tensions and explain substantial variances in the sentences imposed. Indeed, despite working with the same factual information and guideline recommendations, the participants’ sentences do vary widely. It is not unheard of for the range to run from probation to multiple years of incarceration. Sometimes the differences break down along generational lines; sometimes they don’t. All of this and more is examined through the lens of the Workshop cases.

This is 360-degree learning. Unsurprisingly, students learn from the judges and lawyers. The lawyers learn from the judges. The judges are put in the relatively unusual position of being expected to do more than ask questions and announce decisions. Like everyone else, they are expected to answer questions from students, lawyers, and other nonstudent professionals. As such, they learn not only from their colleagues but also from the lawyers, policymakers, and even the students. Think of it this way. Law students don’t know what not to ask. They don’t know that something was tried and declared a failure 20 years ago, so we all need to wrestle with their questions and reconsider those issues. Once in a while, someone even learns from the professor. But my most important job is to engage everyone and keep the puck in play. In short, we all learn from each other.

The order of the cases matters. To achieve the 360-degree learning I just described, participants need to have confidence in one another. They need to be candid. So, building trust is an early — and ongoing — goal. First and foremost, I stress the absolute need for confidentiality. I drive that point home repeatedly, especially but not exclusively for the students. Starting with so-called “easier” cases helps. The first session typically begins with theft cases. Sometimes the defendants are sympathetic; other times, less so. But those early cases are rarely ones that spark strong emotions or particularly harsh sentences. Within categories of cases, I occasionally pair superficially similar files to identify factors that may lead individual participants to sentence those cases differently.

Coffee breaks (with snacks, of course) and meals are essential to the learning process. These interstitial conversations matter. Through both formal and informal interactions, the participants get to know each other as people. Sometimes, that can be challenging for students who may be intimidated by the judges at first, but eventually the group begins to form collegially. Bob Levy observed:

The formal sessions and collective meals fomented a kind of social and intellectual camaraderie and friendship. Inevitably, students shared with the judges aspects of their professional and personal lives, and the judges (perhaps in a more guarded fashion) reciprocated. In such an intimate setting, outside the hierarchical atmosphere of the courtroom, professional exchange can be seasoned with personal disclosure.

That reservoir of trust and goodwill is crucial as the cases get “harder,” particularly in the second session. Those later cases often involve violence and tragedy for victims, witnesses, defendants, and communities. The VSW doesn’t shy away from ugly cases and hot-button social issues that are often intertwined with the criminal justice system.

The inclusion of Parole Board Members also allows VSW participants to step into the shoes of the Board. There is at least one case in the second session in which we explore the decision to grant or deny discretionary parole release. This is a side of the system that even seasoned lawyers and judges rarely understand, let alone experience. The Pennsylvania Commission on Sentencing has promulgated parole release guidelines, which makes this dimension of the VSW even more valuable.

The VSW has also served as a policy sandbox for the Commission on Sentencing. With the Commission as a partner and co-sponsor, there is the ability to discuss different approaches the Commission might — or might not — want to take in the future. It is an opportunity to test drive ideas that may — or may not — be ready for prime time, all within the confidential setting of the Workshop.

I try to infuse normative questions throughout the Workshop. Relying once again on the wisdom of Miller and Wright:

Great teaching should aim for more than just placing current rules in context: it should always include the idealist’s twist. There may be no perfect sentencing. But some systems are better than others, and what is better at one point or in one place may not be so in another.

It is, after all, our justice system. As the ABA Rules of Professional Conduct declares in the Preamble, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” (Emphasis added).

Conclusion

Acknowledging that participant reactions are just one measure of a course’s value, VSW participants have consistently given positive feedback. Here is a fairly typical judicial comment: “I genuinely believe participating made me a better — more reflective judge.” Another one wrote: “I benefited greatly from the workshop. I had an opportunity to evaluate my work, my thought process and develop sensitivity in some areas that will help me to be more enlightened about sentencing considerations and the needs of the various stakeholders in the sentencing process.” Law students rather consistently describe the VSW as one of their favorite courses in law school. Over the years, many graduates — especially those practicing criminal law in the Commonwealth — have cited the VSW’s enduring positive impact on their careers.

Returning one final time to Miller and Wright:

The goal of teaching is not to answer all questions, but to illuminate how questions can be answered. We consider efforts to teach sentencing to be a success whenever the students leave with a sense of their own capacity to work effectively within a system, as well as their capacity to assess and change the rules and the process over time.

By this metric, these Sentencing Workshops are a success.