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August 19, 2010

New US Sentencing Commission report on changes to criminal history computation

The US Sentencing Commission has this new reportup on its website that will likely not get much old or new media attention, but should be of great interest to hard-core federal sentencing nerds like me.  First, here is how the USSC describes the report on its home-page:

Computation of Recency Criminal History Points under USSG §4A1.1(e): This document provides certain information considered by the Commission as part of its determination to amend the guidelines to eliminate the consideration of "recency" points provided in USSG §4A1.1(e).  That amendment, amendment number 5, currently is pending before Congress as part of the package of amendments submitted to Congress on April 29, 2010.  The amendment has a specified effective date of November 1, 2010.

Now here is part of the summary at the end of this report which spotlights why this is a big deal for those who are involved day-to-day with federal sentencing law and practice:

In fiscal year 2009, the applicability of the recency provision was considered in 38,850 cases, all of which necessarily involve defendants in Criminal History Category II or higher.  The provision ultimately was applied in 14,548 of these cases (37.4% of 38,850).  In two-thirds of the cases receiving recency points, the offender received two additional points for USSG §4A1.1(d) (status) (9,921 of 14,548, 68.2%).  Of the 14,548 offenders receiving any recency points, these points had an impact on the offender’s calculated criminal history category in only 4,419 cases (30.4% of 14,548 recency applications).

This review also examined the utility of this subsection in predicting recidivism.  While the Commission does not have recidivism data on non-citizens, with respect to United States citizens, Commission research demonstrates that including recency in the criminal history calculation has minimal predictive power.  Based on the analysis of Commission recidivism data on United States citizens, the inclusion of recency points improves the prediction that a recidivist has a higher criminal history score (compared with a non-recidivist) in just ten of 3,018 comparisons for which the remaining subsections of USSG §4A1.1 alone did not correctly predict the higher.

The prison impact analysis revealed that if recency points were not available in fiscal year 2009, 4,189 of the 14,048 offenders receiving recency points would have moved to the next lower criminal history category, resulting in a reduction in their average sentence from 49 months to 41 months (a 16.3% average decrease).  After five years, eliminating recency points is estimated to save 1,391 prison beds.

In other words, this report reveals that a seemingly minor "tweak" concerning the calculation of criminal history points under the sentencing guidelines could and would impact nearly as many federal sentencing cases as any of the the (much-higher-profile) recent changes to crack sentencing rules. 

In turn, this report also suggests that if (and when?) this criminal history "tweak" officially becomes law this November, lots and lots of current federal prisoners should be very eager for the US Sentencing Commission to give this change retroactive application.  If the USSC makes this change retroactive, it is possible that a sizable number of current federal prisoners would have an opportunity to request and receive reduced sentence.

August 19, 2010 at 10:18 AM | Permalink


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I wish they would drop the 2 points for being on probation as well. Both recency and probation work hand in hand to elevate the history points and the sentence...There are enough layers to elevate sentences...Any thoughts on this?

Posted by: Abe | Aug 19, 2010 10:46:12 AM

Michigan sentencing guidelines score one's prior criminal record on seven criteria. All prior convictions are scored, until there is a gap greater than 10 years when the defendant had no scoreable convictions, no juvenile adjudications, and was neither on probation nor parole. A defendant of a certain age can easily have a criminal history scored that goes back 30 years or more.
The other part of the guidelines score up to 20 "Offense Variables." Most of those deal with the circumstances of the particular violation of the law being scored. However, one (OV 13) scores a "Continuing Pattern of Criminal Behavior," by looking at all crimes committed (not just convictions) in the last five years.
I'm glad to know about this new statement from the USSC, to use it as a way to try to blunt the scoring of OV 13 in appropriate cases. Thanks for letting me know about it.

Posted by: Greg Jones | Aug 19, 2010 2:06:53 PM

They should get extra criminal history points if the offense was committed while under a sentence sucha s probation or parole. In my opinion that is very much an aggravating sentencing factor that should be taken into account as it shows blatant disregard for the law or their supervision conditions if they commited the instant crime while under supervision. Such an increase is necessary to address 3553(a) factors like promoting respect for the law, provide adequate deterrence etc .... The recency points they are doing away with sort of punished the same thing as if you committed the instant offense less than 2 years after release you probably were also on paper. Most of the time only 1 criminal history point applied for recency instead of a maximum of 2 as the defendant was also on paper when the offense was committed.

Posted by: sss | Aug 23, 2010 4:10:27 PM

According to FAMM, the Sentencing Commission rejected making recency retroactive on September 16, 2010.

Posted by: Craig | Sep 18, 2010 10:28:14 AM

does anybosy know when this Amendment will become retroactive???????? Because as far as i know its not even with the november 1st 2010 date?? Any info people can give me would be great!!! Thanks very much,

Posted by: Jamie | Dec 26, 2010 10:41:02 PM

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