Congressional Review of Proposed Amendments to the U.S. Sentencing Guidelines

Congressional Review of Proposed Amendments to the U.S. Sentencing Guidelines

June 6, 2023
Congressional Review of Proposed Amendments to the U.S.
Sentencing Guidelines
The U.S. Sentencing Commission promulgates the U.S.
Though designed to be mandatory, the Guidelines are now
Sentencing Guidelines, which serve as the starting point for
advisory and remain the anchor for federal sentencing
every federal criminal sentence imposed across the country.
determinations. More than 1.9 million defendants have been
The Commission is required by statute to revise the
sentenced under the Guidelines since their inception.
Guidelines periodically. Any such revisions must follow a
statutorily prescribed amendments process. Under that
The Guidelines Amendments Process
process, the Commission must send proposed amendments
In the SRA, Congress instructed the Commission to
to Congress. Submission triggers a 180-day congressional
“periodically . . . review and revise” the Guidelines in light
review period. If Congress allows for the review period to
of additional data, cases, and congressional directives. In
pass without further action, each of the proposed
the inaugural Guidelines, the Commission acknowledged
amendments takes effect. Alternatively, Congress may
that the Guidelines were designed to be “evolutionary.” The
modify or reject a proposed amendment.
Commission explained that “continuing research,
experience, and analysis will result in modifications and
This In Focus provides an overview of the Commission,
revisions to the guidelines.”
outlines the amendments process, describes the lone
historical instance in which Congress rejected proposed
The SRA also spells out the steps and the schedule that
amendments to the Guidelines, and offers considerations for
must be followed for revisions to be made to the
Congress.
Guidelines—generally known as the “amendments cycle.”
The Commission’s amendment cycle typically begins in
Congress’s Creation of the U.S.
June with the publication in the Federal Register of
Sentencing Commission
proposed priorities for agency analysis and possible further
A 1983 Senate report observed that, for most of American
action, and a request for public comment on these priorities.
history, federal judges possessed virtually “unfettered
The Commission reviews and considers any public
discretion” at sentencing: a judge generally could impose
comments and, in August of the same year, publishes in the
any sentence that fell within the broad bounds of the
Federal Register a list of final priorities. The agency next
statutory minimum or maximum penalties set by Congress.
performs additional research and confers with key
If a statute specified that a sentence for a given offense
stakeholders, and this engagement may include public
shall be “no more than twenty years” in prison, for
hearings. In January of the following year, the Commission
example, a judge theoretically could impose a sentence
publishes proposed amendments in the Federal Register
anywhere within that twenty-year range.
and again requests public comment. The Commission may
revise the proposed amendments based on comments and
In the 1970s and 1980s, federal judges, scholars, and others
further stakeholder input. The Commissioners typically
expressed concern that wide statutory ranges and maximum
vote on any proposed amendments in April.
judicial discretion together produced widespread sentencing
disparities—i.e., that similarly situated defendants were not
If the Commission approves any proposed amendments that
receiving similar sentences. A leading voice on federal
year, the SRA requires the Commission to submit such
sentencing reform, U.S. District Judge Marvin Frankel,
amendments to Congress by May 1. The SRA then provides
recommended that Congress create a “National
Congress with a review period of 180 days to modify or
Commission” that would identify national norms on
disapprove the proposed amendments. The SRA further
sentencing. If federal judges referenced the same norms at
states that the amendments will take effect on November 1,
sentencing, greater uniformity in sentencing outcomes
unless Congress modifies or rejects them.
would likely result, Judge Frankel and others argued.
Rejection of Proposed Amendments to
Congress agreed. In 1984, Congress enacted the Sentencing
the Guidelines
Reform Act (SRA), P.L. 98-473, found in Title II of the
The Commission has amended the Guidelines Manual
Comprehensive Crime Control Act of 1984. The SRA
(including Guideline provisions, policy statements, and
established the U.S. Sentencing Commission and directed
official commentary) more than 800 times. Each of these
this new agency to develop “sentencing policies and
amendments is listed in Appendix C to the Guidelines and a
practices for the Federal criminal justice system” that
Supplement to Appendix C. In the history of the
would, among other things, “avoid[] unwarranted
Commission, there has been one instance in which
sentencing disparities.”
Congress rejected proposed amendments to the Guidelines.
https://crsreports.congress.gov

Congressional Review of Proposed Amendments to the U.S. Sentencing Guidelines
Precedent and Procedure for Rejecting Proposed
over the Commission. Congress created the Commission,
Amendments
28 U.S.C. §§ 991 et seq., and thus could go so far as to
In the Anti-Drug Abuse Act of 1996 (ADAA), Congress
eliminate the agency entirely if it chose. Short of that, with
amended the Controlled Substances Act to establish a 100:1
respect to substance, Congress can amend the Guidelines
ratio of the quantities of powder and crack cocaine needed
directly by statute, issue directives to the Commission, and
to trigger mandatory minimum penalties. The Commission
order reports from the agency. With respect to budget,
calibrated the relevant penalty levels in the Guidelines to
Congress supplies and can adjust the funding for the
correspond with the statutory ratio. In 1995, however, the
Commission. With respect to composition, the Senate must
Commission unanimously agreed to move away from the
confirm Commissioners to the Sentencing Commission.
100:1 ratio for purposes of the drug trafficking guidelines.
Twice in the agency’s history, the Commission has lacked a
The Commission voted, 4-3, to adopt a 1:1 ratio instead.
quorum due to a shortage of Senate-confirmed
The Commission reasoned that this ratio would “equalize[]
Commissioners. Most recently, the Commission was
sentences for offenses involving similar amounts of crack
without a quorum from 2019 to 2022 and was unable to
cocaine and powder cocaine at the level currently provided
propose amendments during this time.
for powder cocaine.”
While the scope of congressional authority regarding the
In the same amendments cycle, the Commission voted to
Commission and Guidelines is extensive, Congress may
revise the guidelines applicable to money laundering
consider specific exercises of that authority against the
offenses, which also were originally traceable to the
backdrop of its motivation for enacting the SRA to begin
ADAA. The Commission explained that the money
with—the persistence of unwarranted sentencing
laundering guidelines were overbroad and that the proposed
disparities—and the sense of Congress that a specialized
guidelines would be both simplified and proportionate.
agency would be well-suited to imbue federal sentencing
Pursuant to the amendments process, the Commission sent
with increased uniformity, proportionality, and reliability.
a package of twenty-seven proposed amendments—
As the Supreme Court recognized, “Developing
including the two pertaining to the drug and money
proportionate penalties for hundreds of different crimes by
laundering guidelines—to Congress.
a virtually limitless array of offenders is precisely the sort
of intricate, labor-intensive task for which delegation to an
On September 18, 1995, Senator Spencer Abraham
expert body is especially appropriate.” Mistretta v. United
introduced a bill that would reject both of the
States, 488 U.S. 361, 379 (1989).
aforementioned proposed amendments. The bill was
cosponsored by several Senators, including Senators
Congress and the Commission can consult and confer with
Dianne Feinstein, Orrin Hatch, and Mitch McConnell. The
one another prior to the submission of any proposed
bill passed in the Senate, then in the House, and was signed
amendments to Congress. Doing so may help the
into law by President Bill Clinton on October 30, 1995, P.L.
Commission assess the political viability of proposed
104-38.
amendments and head-off the possibility that Congress may
disapprove proposed revisions to the Guidelines.
This single act, disapproving of two proposed amendments,
represents the first and only time that proposed revisions to
Additional Reading
the Guidelines have been formally rejected by Congress.
The disapproval is thus the sole precedent for the possible
The fol owing CRS products provide additional analysis of
rejection of future proposed amendments to the Guidelines.
legal and policy issues presented in this sidebar:
•
CRS Legal Sidebar LSB10910, When Is a Mandatory
There are “fast track” or “expedited” procedures enacted
Minimum Sentence Not Mandatory Under the First Step Act?,
into law governing House and/or Senate consideration of
by Dave S. Sidhu
particular kinds of measures, but there is no set of expedited
•
CRS Legal Sidebar LSB10929, Can Retribution Justify the
procedures specific to the Guidelines. For example, the
Revocation of Supervised Release? Courts Disagree., by Dave
current Senate Manual enumerates the various sets of
S. Sidhu
expedited procedures available to the Senate by U.S. Code;
however, the provisions of the U.S. Code governing the
•
CRS In Focus IF11965, Cocaine: Crack and Powder
Commission and the amendments process in particular—18
Sentencing Disparities, by Lisa N. Sacco and Kristin Finklea
U.S.C. §§ 3551 et seq., and 28 U.S.C. § 994(p),
•
CRS Legal Sidebar LSB10890, Back in Action, the U.S.
respectively—are not included in this list. Accordingly,
Sentencing Commission to Resolve Circuit Splits on Controlled
ordinary legislative procedures would seem to apply to the
Substances and Sentencing Reductions, by Dave S. Sidhu
rejection of any proposed amendments.

Congressional Considerations
Congress may disapprove of proposed amendments to the
Dave S. Sidhu, Legislative Attorney
Guidelines by way of statute, as it did in 1995. Congress
has additional options at its disposal to exercise oversight
IF12422

https://crsreports.congress.gov

Congressional Review of Proposed Amendments to the U.S. Sentencing Guidelines

Disclaimer
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https://crsreports.congress.gov | IF12422 · VERSION 1 · NEW