Page 338 - Ad Hoc Report June 2018
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States Sentencing Commission in the late 1990s is a useful example. The Sentencing Commission issued an amendment to the Guidelines in 1995 that would have equalized penalties for powder and crack cocaine offens- es.1 The Commission’s proposal was highly controversial with the public. As William K. Sessions has explained, the Senate retaliated by declining to confirm any new nominees to the Sentencing Commission for several years.2 Sessions writes: “By 1998, the Commission had no commissioners. For a year thereafter, the Commission operated solely with staff members — none of whom were presidentially-appointed — and could not promul- gate guidelines amendments.”3 According to Professor Michael O’Hear, the experience left the Sentencing Commission “more timid for many years after.”4
I fear that something similar could happen to a federal defender commission. A partisan division among com- missioners won’t help matters. If the commission votes on a controversial proposal 4-3 along party lines, the public may draw the lesson that the commission is play- ing politics. The best answer, I think, is to ensure that the Commissioners are not subject to political control by the elected branches. Placing the defender agency in the judiciary — in fact, not just in theory — seems to me the best way to do that.
A commission consisting only of district court judges selected by other district court judges would not rely on the elected branches for new members. Article III dis- trict judges would themselves vote on which of their col- leagues in their circuit should serve as commissioners. This collective action would likely lead to the selection of respected judges with a commitment to the defense function to serve as commissioners. Dysfunction in the elected branches would not change who would serve,
as the judges themselves would select and replace Commissioners without outside influence or control.
I also worry that a Sentencing Commission model could
1 SeegenerallyUnitedStatesSentencingCommission,Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995), available at congressional-reports/1995-report-congress-cocaine-and- federal-sentencing-policy.
2 WilliamK.Sessions,AtTheCrossroadsOfTheThree Branches: The U.S. Sentencing Commission’s Attempts To Achieve Sentencing Reform In The Midst Of Inter-Branch Power Struggles, 26 J.L. & Pol. 305, 319 (2011).
3 Id.
4 MichaelO’Hear,TheFailedPromiseofSentencingReform
121 (2017).
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lead to mission creep. As representatives of criminal defense interests — and ones approved by the political branches — commissioners may have incentives to take agency positions on matters beyond the narrow function of providing criminal defense services. For example, they may have positions on whether Congress should enact new criminal laws, or whether Congress should amend the collateral review statutes, or about the budget of the United States Department of Justice. If so, that could fur- ther drag the defender agency into the political thicket.
A commission consisting entirely of judges would be much less likely to take that path. The voting commis- sioners would be assisted in their task by non-voting members ex officio drawn from the federal defender community. But the budget requests and decisions of the defender commission would be the work of judges. As judges elected by other judges, bound by codes of judicial conduct, they would be seen as trustees of the defense function rather than as advocates for it. In my view, this makes it more likely that the commission would be insulated from political attack.
None of this questions the core thesis of our report.
I agree that the defense function needs greater inde- pendence from the judiciary. Judges should not be making decisions about the defense in cases that they preside over as judges. They should not be selecting public defenders in their own districts. The Judicial Conference should not control lobbying for the criminal defense budget. The conflicts of interests raised by these arrangements are made abundantly clear in our report, and I agree with those conclusions.
Where I part with my colleagues is in how best to nav- igate between the Scylla and Charybdis of judicial and political control in deciding who becomes a commis- sioner and how. No system is perfect. As our report details, too much and too direct judicial control is harmful. But too much and too direct political control is harmful, too. As I see it, the best prospects for a defense commissionthatavoidstheconflictsofinterestiden- tified in our report — and yet avoids political control
by the elected branches — is through the new agency structure proposed in our report but with judges serving as the commissioners.
 T H E
No recommendation presented herein represents the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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