"How the Sentencing Commission Does and Does Not Matter in Beckles v. United States"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Luke Beasley. Here is the abstract:

This Essay considers how significant the differences between the Armed Career Criminal Act and the Sentencing Guidelines are to one question the Supreme Court is poised to address in Beckles v. United States -- namely, whether a rule invalidating the so-called "residual clause" in the Sentencing Guidelines applies retroactively to cases on collateral review.  This Essay collects evidence from resentencings that have occurred after courts have found the Guidelines' residual clause invalid.  These resentencings have resulted in defendants receiving significantly less prison time. 

The extent to which a rule invalidating the Guidelines' residual clause affects defendants' sentences -- often significantly -- justifies revisiting defendants' sentences because whatever finality interests exist in the defendants' sentences are outweighed by the effects that a rule invalidating the Guidelines' residual clause has on the amount of prison time defendants serve.  The Supreme Court should also not hesitate to make a rule invalidating the Guideline retroactive because the Sentencing Commission decided not to make retroactive an amendment deleting the Guideline's residual clause.  The Commission never investigated how difficult it would be to make that amendment retroactive.

A few of many related prior posts and related materials:

• SCOTUS grants cert on Johnson application to career offender guidelines
• Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
• "What Lurks Below Beckles"
• Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
• "Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."
• Topical archive of many related posts:  Vagueness in Johnson and thereafter