Trump Announces Tough-on-Crime Nominees to Sentencing Commission

Nominations highlight ongoing battle over federal sentencing

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• March 2, 2018 3:55 pm


President Donald Trump on Thursday announced four new nominees to the United States Sentencing Commission (USSC), at least two of whom, if confirmed, would bring a tough-on-crime attitude to the federal government's sentencing advisory body.

Established in 1984, the USSC is responsible for promulgating non-binding guidelines for the sentencing of federal offenders, with an eye toward reducing disparities in sentences under the previously more-discretionary system. Commissioners are responsible for defining the guidelines

One nominee is Judge Henry E. Hudson, a U.S. district judge for the Eastern District of Virginia, a position he has held since his 2002 appointment by President George W. Bush. Nicknamed "Hang ‘Em High" Henry, Hudson is an infamously tough-on-crime judge who comes equipped with conservative bona fides such as his chairmanship of President Ronald Reagan's national commission on pornography, which connected porn to violence.

Hudson also has a powerful ally in the White House: Attorney General Jeff Sessions. Sessions reportedly pushed for Hudson's appointment to the USSC as early as August of last year, as part of a broader effort to appoint commissioners sympathetic to Sessions's sentencing priorities.

The other nominee is William G. Otis, a former assistant United States attorney and former special counsel to President George H.W. Bush. Otis is an outspoken opponent of many of the policies customarily identified with "criminal justice reform"—Slate once characterized him in a profile as the "last man standing" against reform. He believes that stringent sentencing, of the kind implemented in the 1980s and '90s, is what drove the decades-long crime decline, a hotly contested claim. Otis has called sentencing reform "a bad idea on the merits."

Otis's nomination is so controversial, in fact, that it prompted an unprecedented response from the anti-mandatory minimums group Families Against Mandatory Minimums (FAMM). Otis has been a vocal proponent of mandatory minimums, arguing that they prevent unjust leniency from judges; opponents criticize minimums as contributing to needlessly lengthy and unwarranted sentences.

"FAMM has never taken a position before on U.S. Sentencing Commission nominees, but we feel compelled to change that policy in light of today's announcement," FAMM President Kevin Ring said in a statement. "Mr. Otis's outdated views are well-known and well-documented. This is not a person who will be guided by evidence and data. The Senate should reject this nomination."

Judge William H. Pryor, who currently serves as a circuit judge of the Eleventh Circuit Court of Appeals, was first nominated to the USSC in 2013 by then-President Barack Obama, and confirmed unanimously by the Senate. He has served as the USSC's acting Chairman since January of 2017—if confirmed, Pryor will fill that position officially.

Pryor is a familiar face to the Trump administration. He succeeded Sessions as attorney general of Alabama when Sessions was elected to the Senate. And Pryor's name appeared on Trump's shortlist to fill the Supreme Court seat vacated by the late Antonin Scalia. Although that slot eventually went to now-Justice Neil Gorsuch, reports suggest Pryor made it to the final three for consideration.

Rounding out the list is Judge Luis Felipe Restrepo, a circuit judge of the Third Circuit Court of Appeals. Restrepo provides ideological balance to the nomination list, having been appointed to his current judicial seat by President Obama in 2016; he also served one year as a law clerk with the American Civil Liberties Union's National Prison Project.

Now nominated by the White House, the four men will proceed to consideration by the Senate Judiciary Committee. Although the Judiciary Committee is controlled by the majority-party Republicans, a group including committee chairman Chuck Grassley (R., Iowa), Sen. Mike Lee (R., Utah), and Sen. Dick Durbin (D., Ill.) has pushed for federal sentencing reform since at least 2015.

All three senators declined to comment on the USSC nominations.

Last month, that group voted the Sentencing Reform and Corrections Act of 2017 out of committee over the dissenting votes of five Republicans. The bill would reduce the federal offender population by retroactively reducing mandatory minimums for some drug and violent offenses, as well as instituting some prison reforms of the sort supported by the White House.

Beyond the five dissenting Republicans, the SRCA has one other prominent opponent: Attorney General Sessions, who penned a letter to Grassley voicing his opposition to the bill. The White House has also publicly opposed the SRCA, stating that it instead intends to focus on prison reform. Grassley, however, remains committed to passing the SRCA, saying on Twitter that he was "incensed" by Sessions's letter.

Hudson and Otis are both perceived as allies of Sessions in the fight over the future of federal sentencing. As such, their appearance before the Judiciary Committee may bring them into conflict with the Committee's more reform-minded members, leaving open the question of whether or not the two men will make it through to the floor of the Senate.