The U.S. Sentencing Commission voted 3-2 along party lines on Friday to give the public defender community a seat at the table in its policymaking decisions, the first time the panel has done so since it was created more than four decades ago. The commission revised its internal rules to invite representatives of the Federal Public and Community Defenders and the U.S. Judicial Conference's Committee on Criminal Law to take part in its non-public deliberations.
The commission's chairman, U.S. District Judge Carlton Reeves, who was appointed by President Joe Biden, said the change had been long in the making and had "overwhelming support across the criminal justice system." He said it would ensure public defenders and the judiciary can share their perspectives as the panel updates the advisory sentencing guidelines judges use to set punishments for criminal defendants.
The change drew sharp objections from the panel's Republican members. Candice Wong, a former federal prosecutor, said no commission had ever added "de facto ex officio members where Congress did not and has not," and noted that Senator Chuck Grassley, the outgoing Republican chairman of the Senate Judiciary Committee, opposed the proposal as "an end run around Congress's clear intent." Justice Department official Claire Murray questioned the timing, saying the vote was rushed to get ahead of the Republican-led Senate confirming two new members who would give Republicans a majority on the panel. "Today is the very last day that the commissioners voting for this amendment could be sure that their votes alone would be sufficient to carry the day," Murray said.
By law, a Justice Department official has long served as an ex officio, non-voting member of the commission, but no such position exists for the public defender community. Reeves said the rule change would not alter that status, though he said Congress should consider "giving the defender perspective the title, role, and power it deserves." Legislation backed by Democrats to add a non-voting member with a public defender background has been introduced in Congress, but no such bill has passed. The commission put the proposal out for public comment in August, and it was the only item put to a vote on Friday.
