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September 16, 2010

What will USSC do given that DOJ and the Judicial Conference oppose retroactivity for new criminal history rules

As detailed here, the US Sentencing Commission has a public meeting scheduled today at which it will possibly vote whether to give retroactive effect to its new amendment to reduce the impact of "recency" as a factor in the calculation of the criminal history score.  This recent analysis from the USSC shows that over 7,500 federal inmates might get, on average, more than a year off their prison sentence if this amendment is made retroactive.

Yesterday, the Sentencing Commission posted here the materials it received in response to its request for public comment on this issue.  Intriguingly, as detailed in letters available here and here, the Justice Department "strongly opposes retroactive application of the amendment" and the Criminal Law Committee of the Judicial Conference has unanimously recommended against retroactivity.  The themes of these letters highlight the administrative burdens that will be placed on courts and other players in the system from having to process all the sentence modification requests that would result from making the amendment retroactive.  (Not surprisingly, defender groups support retroactivity and suggest the burdens will not been too great.)

Among other interesting aspects of this debate, these retroactivity issues present the classic theories of punishment in sharp relief.  A true retributivist likely would say that if future offenders do not deserve to have their punishment enhanced by the guideline provision that the Commission has amended, then past offenders ought not justly be required to sit in prison longer than they deserve and thus the new form of guideline justice ought to apply retroactively.  But a utilitarian likely would share the view of prosecutors and judges that achieving a bit more justice for (thousands of) past offenders is not worth the considerable  administrative burdens that retroactive justice would demand.

Any predictions on how the US Sentencing Commission will resolve this issue?  I suspect the views of prosecutors and judges will end up carrying the day, though perhaps the USSC will find a way to engineer a retroactivity rule that can achieve maximum justice at minimal costs.

UPDATE:  According to the folks at FAMM, my prediction that the the views of prosecutors and judges would carry the day concerning retroactivity appears to have been accurate: the US Sentencing Commission on Thursday voted against making its new recency amendment retroactive.

September 16, 2010 at 10:05 AM | Permalink


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Prof. Berman seeks the morning line on the Commission's "achiev[ing]maximum justice at minimal costs." Please direct me to the nearest OTB office so that I might bet the ranch.

Posted by: alan chaset | Sep 16, 2010 11:49:31 AM

The costs are minimal and it's disingenuous for any group to suggest otherwise.

This is the easiest amendment to implement retroactively. Did "D" get a point for recency? Did that point increase D's criminal history category? If so, reduce D's sentence to same point in the new range that D got in the old range. It's simple.

This is even easier to implement than the crack amendment, which itself had little to no problems.

Posted by: DEJ | Sep 16, 2010 12:17:04 PM

Retributivists, unfortunately, are generally not "true"... they're cold hearted and only care about throwing away the key.

Posted by: anon | Sep 16, 2010 8:10:38 PM

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