Sentencing Commission May Lose Commissioners . . . and Ability to Act

If Congress adjourns this October without confirming or reappointing at least four commissioners to the U.S. Sentencing Commission, no amendments can be made to the U.S. sentencing guidelines, including action on any of the various congressional directives to the Commission contained in recently enacted legislation. That is because there would be seven vacancies on the seven-member Commission. Judge Richard P. Conaboy, the Commission’s chair, has announced his resignation effective October 31, 1998.

A quorum of four commissioners is required to amend the guidelines, and three vacancies already exist among the seven voting members of the Commission. Three members, whose terms have expired, remain but they continue to serve until either a successor takes office or Congress adjourns. When the 105th Congress winds up sometime this fall, the terms of these commissioners will also expire—and Conaboy departs in November. The Commission has been without its full complement of commissioners since 1996. By statute, the President appoints the voting members of the Commission with the advice and consent of the Senate. One member is appointed by the Senate as chair, and three mem-bers by the President as vice-chairs. At least three of the members shall be federal judges, and not more than four of the Commission members shall be members of the same political party. Of the three vice-chairs, not more than two shall be members of the same political party. On a number of occasions, the Judicial Conference has offered its recommendations to the President for the vacancies to be filled by federal judges.

It was 1994 when Wayne Anthony Budd, (photo left) Judge Deanell Reece Tacha (10th Cir.) (second from right) and Michael Goldsmith (photo right) posed with U.S. Sentencing Commission chair Judge Richard P. Conaboy at their swearing-in ceremony as commissioners on the U.S. Sentencing Commission—the last time commissioners were named. And unless Congress acts before it adjourns, the Commission soon will be without commissioners.

And what happens if, come November, the Commission is without commissioners? “I’m an optimist at heart,” said Conaboy. “The Commission will survive. We will be handicapped, and we may not be able to do the things Congress feels are important, but we will survive.”

In the past, Congress has frequently requested the Commission to amend sentencing guidelines in light of new crime legislation, or it may request studies to gauge the impact of a change in criminal law. Following the 1994 crime bill, over 50 amendments were made to the U.S. sentencing guidelines. “Almost on an annual basis, Congress directs us to add an amendment,” said Conaboy. “Last year we had a moderate load with approximately 26 amendments, and this year we’ve had 18. Typically, half of the amendments are congressionally related, but a fair number have been the resolution of circuit conflicts in interpretation of the guidelines.”

What happens to these directives if there are no commissioners to vote? As an example, Conaboy cited a congressional directive enacted earlier this year to study telemarketing fraud and to in- crease penalties for the crime, if appropriate. “We can’t comply if there aren’t enough votes,” said Conaboy.

The Commission’s work extends well beyond amending the sentencing guidelines, and it is this work that Conaboy said will continue, with or without commissioners. “The good news is that we’ll continue the Commission’s research, legal analysis, and training of people in the field to understand and use the guidelines. That’s the nucleus of what we do.” Currently, the Commission is either preparing or has contracted for reports on pre- and post-guideline sentencing disparity, characteristics of persons receiving a departure, the operation of the organizational guidelines, and various topics for November’s meeting of the American Society of Criminology. “Approximately 50,000 people are sentenced in federal court every year,” said Conaboy. “Add to that the number of victims of crime, and you have a picture of the number of people whose lives are impacted by the sentencing guidelines. It’s an enormous responsibility for the federal Judiciary, and the sentencing procedure needs to be working well. That’s the importance of the Sentencing Commission.”

It was 1994 when Wayne Anthony Budd, (photo left) Judge Deanell Reece Tacha (10th Cir.) (second from right) and Michael Goldsmith (photo right) posed with U.S. Sentencing Commission chair Judge Richard P. Conaboy at their swearing-in ceremony as commissioners on the U.S. Sentencing Commission—the last time commissioners were named. And unless Congress acts before it adjourns, the Commission soon will be without commissioners.