In a recent Essay, Professor Litman and Mr. Beasley provide a detailed discussion of how they believe the U.S. Sentencing Commission’s data and recent actions relating to the career offender Guideline do and do not matter to the Supreme Court’s consideration of the issues set forth in Beckles v. United States. First, in support of retroactive application, the authors argue that lower court decisions invalidating the Guideline’s residual clause have “uniformly” resulted in “less severe sentences.” Second, the authors contend that the Supreme Court should give little weight to the Commission’s decision not to make retroactive its removal of the “residual clause” from the career offender Guideline. The authors support this contention with their misconception that the “Sentencing Commission opted not to investigate the possibility of making is amendment retroactive at all . . . .”
This Response does not wade into the legal issues raised in the various briefs in Beckles, or respond to the authors’ arguments regarding the import of a small number of resentencings; it instead seeks to provide greater clarity on the Commission’s process for deciding whether to make amendment guidelines retroactive.