Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules

The highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission last week (basics here) concerns a major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" (discussed here).  But the most consequential amendment might prove to be new provisions altering how criminal history will impact guideline calculations.  USSC Chair Reeves discussed in his statement at last week's hearing (just some of) the particulars:

[W]e have proposed addressing two discrete ways in which the sentencing guidelines punish people for having a “criminal history.”  The first proposal aimed to reduce or eliminate the use of “status points,” which are sentencing enhancements given to people who committed a crime while on parole or probation.  As we heard from many commenters, status points often amount to a form of “double penalty.”...  Moreover, Commission research strongly suggests that status points’ ability to predict recidivism -- a core justification for their use -- may be extremely weak.

In light of all this, the Commission’s final policy eliminates status points in the vast majority of criminal cases. For a limited category of defendants with extensive criminal histories, we are cutting the effect of status points in half, reflecting the idea that this tool may sometimes achieve other goals beyond predicting recidivism.

The second “criminal history” proposal we issued sought to fulfill a core directive Congress gave the Commission at its inception.  That directive says that, in general, “a first offender who has not been convicted of a crime of violence or an otherwise serious offense” should not be incarcerated.  The Commission’s proposal sought to define who met this standard and what the consequences for meeting this standard should be.

Ultimately, we decided to answer both questions broadly.  Our final policy provides a larger reduction in sentence for a larger category of people than the status quo.  While we agreed to limit this reduction in a limited set of circumstances, we also agreed to give judges discretion to expand non-carceral options to more people.

These two items concerning "status points" and "zero-point-offenders" are the big ticket criminal history matters, though the Commission also adds to its examples of overrepresented criminal history cases involving criminal history points resulting from marijuana possession convictions. 

As detailed here, the Commission has officially sought comment on whether it should make the key parts of its new criminal history amendment "available for retroactive application."  The Commission states that a "retroactivity impact analysis will be made available to the public as soon as practicable."  I suspect that analysis will show these criminal histpry changes could impact many thousands, perhaps tens of thousands, of federal prisoners.  This June 2022 report from the Commission detailed that "over one-third of federal offenders (37.5%) received two 'status points' under §4A1.1(d) as part of their criminal history scores."  And this 2022 USSC Quick Facts accounting of federal prisoners noted that almost 30% "have little or no prior criminal history."  Though not all these populations would clearly benefit from retroactive application of the new criminal history rules, a sizeable number likely would.   

Retroactivity dynamics aside, it appears from Table 23 in the USSC's latest annual data on criminal history scores that over 60% of federal defendants sentences in fiscal year 2022 had either had zero criminal history points (33.9%) or received status points (26.7%).  In other words, the data suggest that more future federal defendants will be impacted by these criminal history amendments than won't be.  In short, these are relatively small criminal history changes sure to have a relatively big impact.