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Filed 6:00 a.m.
09.17.2020

Before Election, Trump Tries To Stack Prison-Sentencing Agency With Right Wing Allies

The U.S. Sentencing Commission, required by law to be bipartisan, helps set prison terms for more than 70,000 people every year.

From left, John G. Malcolm, Judge K. Michael Moore, Judge Henry E. Hudson, Judge Luis Felipe Restrepo, and Judge Claria Horn Boom have been nominated by President Trump to fill the five empty spots on the U.S. Sentencing Commission. From left: Sue Ogrocki/Associated Press; J. Albert Diaz © 2020 ALM Media Properties, LLC; Jay Paul/The Washington Post, via Getty Images; Diego M. Radzinschi © 2020 ALM Media Properties, LLC; Carolyn Kaster/Associated Press

President Trump has quietly nominated a slate of tough-on-crime former prosecutors to run a powerful agency that writes the sentencing rules for the entire federal prison system.

The U.S. Sentencing Commission is an independent panel of seven members who set guidelines for federal judges to follow when calculating defendants’ prison time, with an emphasis on making sure that sentences are fair and not overly punitive. The commission is required by law to be bipartisan and to represent a diversity of backgrounds.

But Trump has broken from that precedent by proposing to fill the agency’s five empty seats with appointees who are nearly all white male former law enforcement officials.

This article was published in partnership with The Guardian.

And Senate Majority Leader Mitch McConnell may, in the final months before the end of the president’s term, try to confirm these nominees, according to five Senate Judiciary Committee staffers as well as several advocacy groups.

“We’re worried they’re trying to cram these appointments through in case Trump loses,” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

More than 70,000 people every year have their prison sentences calculated according to the commission’s guidelines.

The president’s nominees include Judge Henry E. Hudson, a federal judge in Virginia known as “Hang ‘Em High Henry,” who once said, “I live to put people in jail.” Hudson, a former prosecutor and former director of the U.S. Marshals Service, led a Reagan administration anti-pornography commission that claimed that viewing sexual images causes sex crimes.

Critics also point to a case in which he refused to apologize to an intellectually disabled man he prosecuted and sent to prison for murder after DNA evidence proved the man was innocent.

Also among the president’s picks for the commission is Judge K. Michael Moore of Florida, another former prosecutor and another former director of the U.S. Marshals. In 2015, Moore sent a nonviolent first-time drug offender to prison for 20 years, a sentence so extreme that Trump commuted it four years later.

Other nominees include Judge Claria Horn Boom of Kentucky, a former prosecutor championed by McConnell, and John G. Malcolm, a former prosecutor who is now the director of a judicial studies program at the conservative Heritage Foundation.

The lone non-prosecutor in the group is Judge Luis Felipe Restrepo of Pennsylvania, a former public defender nominated to the federal bench by former President Obama.

“These are honestly some of the most extreme right-wing nominees the administration could have possibly come up with,” said Rachel E. Barkow, who was appointed by President Obama to the Sentencing Commission and served until 2019. She is now a professor at the New York University School of Law.

Barkow noted that the commission is supposed to promote evidence-based sentencing reform, its decisions made based on facts about crime and recidivism rather than ideological posturing.

Trump and McConnell’s late effort to install a tough-on-crime lineup at this influential federal agency comes at a time when millions of Americans have taken to the streets to demand a less racially biased and more humane criminal justice system.

The president himself has for decades been a fierce advocate of the death penalty and punitive justice, but has also at times claimed to be a champion of more humane sentencing—based mainly on agreeing in 2018 to sign the First Step Act, which rolled back some of the federal system’s most draconian punishments.

But these Sentencing Commission appointments and Trump’s recent law-and-order rhetoric mark a return to form. “The president ought to choose people who will faithfully implement the First Step Act and be true to its intent,” said Sen. Sheldon Whitehouse, a Rhode Island Democrat.

Trump has said little publicly about his nominees, perhaps to avoid drawing media attention that could complicate their confirmation by the Senate Judiciary Committee. Senator Kamala Harris, the Democratic vice presidential nominee, is a member of that committee, as are some Republicans—including Chuck Grassley of Iowa and Mike Lee of Utah—who have supported some efforts to moderate harsh sentencing.

Judiciary Committee staffers said that one or two of Trump’s picks may get confirmed, but probably not all. Reform advocates say there is not enough time to properly evaluate the candidates, and that any vote on them should wait until next year.

“During normal times, the wonkiness of nominees to the Sentencing Commission might have allowed the package to move forward,” said David Safavian, general counsel of the American Conservative Union and an advocate of sentencing reform. “But it’s too easy for Democrats to demagogue Henry Hudson.”

Spokespeople for McConnell and for Sen. Lindsey Graham, the chairman of the Judiciary Committee, did not respond to requests for comment as to whether there will be a confirmation hearing in the coming months.

The Sentencing Commission has tremendous power over how many Americans are locked up in federal prisons and for how long. During the Obama administration, the agency voted unanimously that nearly 50,000 federal drug offenders could have their sentences reduced; they got an average of about two years shaved off of their time behind bars.

The Sentencing Commission also provides data and recommendations to Congress and the president about crime policy.

But over the past four years, several members of the panel have seen their six-year terms expire. And, as Trump has focused on appointing judges, he had not moved aggressively to fill those openings until the past month.

The process of selecting Sentencing Commission nominees is heavily influenced by the Attorney General’s office. Legal experts see William Barr’s hand in this slate of nominees consisting of nearly all former Justice Department prosecutors.

“Prosecutors always say, ‘We don’t make the law, we just enforce it,’” said Safavian of the American Conservative Union. But choosing this group of appointees to set federal sentencing rules, he said, “is one of many examples of how that is not at all true.”