Comment on Proposed USSC Policy Priorities for the Amendment Cycle Ending May 1, 2025

July 15, 2024

The Honorable Carlton W. Reeves Chair
U.S. Sentencing Commission
One Columbus Circle, NE

Suite 2-500, South Lobby Washington, DC, 20002-8002

RE: Justice Action Network Comment on Proposed Policy Priorities for the Amendment Cycle Ending May 1, 2025

Dear Chair Reeves and Members of the Commission:

We write in response to your request for public comment on the U.S. Sentencing Commission’s priorities in the amendment cycle ending May 1, 2025. We appreciate the opportunity to comment on the Commission’s priorities.

The Justice Action Network (JAN) is the nation’s largest bipartisan organization dedicated to criminal justice reform. We believe in a strategic, data-driven approach to changing hearts, minds, and laws for a smarter, fairer, more efficient, and more effective justice system. JAN brings policymakers, stakeholders, and advocates from across the political spectrum together to advance strong, bipartisan criminal justice reform efforts at both state and federal levels.

Previously, we wrote to the Commission in support of amendments to the Sentencing Guidelines regarding criminal history of youthful offenders and consideration of acquitted conduct, and we were pleased that the Commission acted to limit the consideration of both youth offender criminal history and prior acquitted conduct when sentencing for new offenses. Today, we write to urge the Commission to go a step further and fully prohibit the consideration of acquitted conduct, except when it may be so compelling as to contribute to the reduction of a sentence.

In addition, we urge the Commission to prioritize research in two areas. First, the Commission should resume the regular publication of reports on the federal supervised release population. The Commission’s most recent report in this regard, “Federal Probation and Supervised Release Violations,” was published in July 2020. This report showed important data on the year- over-year trends, geographic distribution of supervision violations, demographics of offenders, offense types, and more. In June 2023, the Commission published a primer on supervised release that provided, “general overview of the statutes, guidelines, and case law related to supervised release.” However, this primer did not provide data on the federal supervision population. The publication of data on supervision characteristics and trends benefits policymakers and the public, and we urge the Commission to publish updated reports at least every two years.

Second, we urge the Commission to consider changing the primary metric used to measure recidivism in its reports. Recidivism can be measured in a variety of ways, including arrest, adjudication, conviction, and incarceration. While the Commission has collected data on multiple measures and published it in several reports, the Commission uses arrest as the primary measure. In the Commission’s 2022 report titled, “Length of Incarceration and Recidivism,” the Commission stated that:

Rearrest is the most common measure of recidivism used by federal agencies in recent recidivism studies. Federal agencies are using rearrest as the primary measure because it is a more reliable measure than reconviction or reincarceration due to the incomplete nature of disposition data. Criminal records often fail to include information pertaining to reconviction or reincarceration because jurisdictions inconsistently report them. The records compiled for this study reflect this inconsistency. For example, records for 44.1 percent of rearrest charges had no associated disposition information.

While rearrest datasets may be more complete, rearrests do not necessarily mean a crime has been committed. This holds true even if accounting for technical violations of supervision terms, where an offender may be arrested and reincarcerated for a condition such as failing a drug test. In the Commission’s 2022 report, for example, we cannot assume that the 44.1 percent of rearrest records that did not have associated disposition information resulted in a technical violation or a reconviction, and we therefore don’t have a full picture of the public safety result.

Recidivism reduction programming in the Federal Bureau of Prisons and multiple state systems aim to increase public safety by reducing the risk an offender will commit a crime when released into the community. Further, the First Step Act of 2018, which the FBOP continues to implement, contained several new programs aimed at reducing recidivism. Measuring the success of these programs based on rearrest is not a valid measure of whether or not they are working, since the final arbiter of whether a crime has been committed, a guilty verdict in court, is not captured in the data. The Commission should work with district courts and the Probation and Pretrial Services Office to determine why there are inconsistencies in the reporting of reconviction and reincarceration data, and should work with these stakeholders on ways to increase this reporting.

Finally, the Justice Action Network is part of a large coalition of criminal justice organizations filing comments today, including conservative, progressive, law enforcement, and civil rights groups. We agree with the recommendations submitted by several of these organizations, including: FAMM, FWD.us, the Due Process Institute, and Right on Crime. These organizations have conducted detailed analyses of the Sentencing Guidelines and the comments they have submitted today are very worthy of your consideration.

Thank you for considering these comments. If you have any questions, please do not hesitate to contact me.

Sincerely,

JC Hendrickson
Director of Federal Affairs Justice Action Network