(CNN)Liberal Supreme Court Justice Sonia Sotomayor, joined by her conservative colleague Justice Amy Coney Barrett, raised concerns on Monday about disparities in the federal system over sentencing guidelines.
The United States Sentencing Commission has been unable to issue new guidelines to lower courts because the commission currently has an insufficient number of members to be able to reach a quorum, Sotomayor wrote for the duo in a statement.
“At this point, the Sentencing Commission has not had a quorum for three full years,” Sotomayor wrote. She said as things stand, lower courts are currently divided on certain issues that could lead to “direct and severe” consequences for defendants’ sentences.
The very fact that two justices on the opposite sides of the ideological spectrum weighed in together on Monday caused some experts to believe that Barrett might be concerned about the operation of the federal sentencing system and potential disparities that can arise because the commission has not been able to function.
“It’s an issue that Sotomayor has raised — often alone — in past cases,” said Douglas A. Berman, a sentencing guideline expert at The Ohio State University’s Moritz College of Law. “That Barrett now joins her statement could be a new chapter in the way the court starts looking at these issues.”
Berman noted that during the Trump administration the terms of a number of commissioners expired and even though the former President put forward nominees, Congress failed to act. Biden has yet to nominate new members.
The commission is a bipartisan independent agency that was created in 1984 to reduce sentence disparities. According to its website it is supposed to “continuously” establish and amend sentencing guidelines for the judicial branch.
“It’s not just that the newest justice is joining Sonia Sotomayor to highlight this issue,” Berman said, “but to date, Justice Barrett hasn’t expressed a particular interest in sentencing issues. ”
“By adding her name to this statement, one wonders if she might be more inclined to start urging the courts to take on more of these types of cases that impact thousands of defendants in federal courts,” he said.
The commission consists of seven voting members appointed by the president and confirmed by the Senate, who each serve six-year terms. It currently only has one active member, Senior US District Court Judge Charles Breyer, the brother of Supreme Court Justice Stephen Breyer.
Sotomayor’s statement came as the justices denied a petition from Thomas Javion Guerrant. Guerrant is currently serving a 10-year term because he sold seven grams of heroin to an undercover informant, fled from police and damaged a US Marshals vehicle. The sentence came after a district court determined that Guerrant was a “career offender” because of two prior convictions.
Lawyers for Guerrant told the justices in court papers that he would have received a much shorter sentence had he been charged in other judicial circuits because they have a different interpretation for what amounts to a “controlled substance offense.”
Guerrant was charged in Virginia and convicted in the United States District Court for the Western District of Virginia where he received his sentence. It was affirmed by the 4th US Circuit Court of Appeals.
Federal appeals courts have split over the proper definition of a “controlled substance offense” under the law which means they are also split over which defendants qualify as “career offenders” and should get enhanced sentences.
The justices turned away Guerrant’s request Monday to address the discrepancy between the circuits.
Sotomayor did not suggest that the court should have taken up Guerrant’s appeal, but made clear that she hoped “in the near future” the commission would “be able to resume its important function to our criminal justice system.”