Emory Law Journal


Jarrett Faber


While there has been increased attention on the necessity of criminal justice reform in the United States, limited attention has been paid to the role that the United States Sentencing Commission has played in exacerbating the very problems that it was designed to address. Though the Sentencing Commission was initially envisioned as a body that would protect criminal defendants from sentencing disparities, it has morphed into a body that has limited effectiveness in reaching that goal due to its misuse of commentary as a tool to effect substantive change in sentencing policy to the detriment of criminal defendants. Commentary was initially designed as a flexible tool that the Sentencing Commission could use to interpret and explain the sentencing guidelines, but it has increasingly been used by the Commission to replace amendments to the guidelines themselves. This shift might seem insignificant on its face, but, in reality, it has subjected criminal defendants to years of additional imprisonment in the absence of the protections that Congress initially intended, because courts have been required to defer to this commentary in most cases by an administrative law doctrine known as Auer deference. This Comment proposes that the Supreme Court’s recent decision in Kisor v. Wilkie to integrate the test for Chevron deference into the test for Auer deference presents an opportunity for courts to address this problem. This Comment then argues that courts should strictly apply the traditional tools of statutory construction and use the rule of lenity in determining whether (1) a sentencing guideline is genuinely ambiguous and (2) the Sentencing Commission’s interpretation of that guideline in commentary is reasonable. Applying the test for Auer deference in this manner would drastically reduce the frequency with which commentary receives deference from the courts, something that would protect criminal defendants from changes in sentencing policy that are enacted in the absence of the protections provided for in the Sentencing Reform Act. Moreover, this change would encourage the Sentencing Commission to make substantive changes to sentencing policy by amending the sentencing guidelines themselves—not by amending the commentary—which would benefit criminal defendants and society more generally.

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