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April 9, 2023

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.

April 9, 2023 at 11:52 PM | Permalink


This is a good start and I’d like to be retroactive

Posted by: Myesha | Apr 23, 2023 5:37:30 PM

Minimum sentences need to be reviewed.

Posted by: Judy Martin | Apr 30, 2023 7:36:56 PM

Pleas pass and make RETRO!

Posted by: Tequila Ulmer | May 1, 2023 3:53:14 AM

I would like to see this pass an be retroactive so many have served time at home an has not been credited for that time my son served three years on a ankle monitor at home an that should have counted for some time served!! If they don’t count that then why put anyone on a lockdown like that!!

Posted by: Bev lynch | May 1, 2023 8:56:50 AM

I hope this passes!

Posted by: Taina Powell | May 1, 2023 11:52:53 AM

I hope this passes

Posted by: Taina Powell | May 1, 2023 11:53:08 AM

Mother of an FBOP inmate, I am in favor of amendment 4C1.1 please pass, and make retroactive.

Posted by: W. Hand | May 4, 2023 9:18:25 PM

Make it Retroactive and allow those who qualify to receive a full resentencing. That way they are reviewed to a current standard.

Posted by: Eric | May 8, 2023 6:04:25 PM

This bill should PASS and be RETROACTIVE immediately given all the unruly time given to non violent offenders and first time offenders..

Posted by: Requia Campbell | May 8, 2023 10:18:29 PM

As a mother of a federal inmate in this passes ,make this RETROACTIVE and give our loved ones a fare chance 🙏

Posted by: Chyone Fox | May 17, 2023 5:40:25 AM

Please make this RETROACTIVE

Posted by: Chyone Fox | May 17, 2023 5:41:08 AM

has this been determined to be retroactive yet?

Posted by: Charisma Fozard-Thomas | May 17, 2023 7:04:02 PM

I believe we will hear about retroactivity in late June or July.

Posted by: Doug B | May 17, 2023 8:53:34 PM

Please make this retroactive as that only seems right if something is passing the already sentenced inmates should also be granted the same. Please also look into changing mandatory minimum sentencing. No persons fate should be at the sole hands of a prosecutor when it’s in the prosecutors best interest to give you as much time as possible. All things like criminal history and background should be considered and decided by a judge.

Posted by: TW | May 22, 2023 8:21:44 AM

Please make this retroactive. Too many have suffered long enough already .

Posted by: Rita Pacchiana | May 22, 2023 5:32:42 PM

A wife of someone incarcerated in federal prison.

I have 2 questions:

1. How does this impact someone on probation?

2. The 2 point reduction what disqualifies a person from that?

Thank you

Posted by: Charissa Pender | May 22, 2023 9:28:59 PM

I think this is a great opportunity for a lot of inmates & their families! Make it retroactive!!

Posted by: Tracy Lawler | May 22, 2023 11:03:11 PM

The criminal history 4A1.2(e) applicable time period needs to be changed back to 10 years the 15 years is outrageous. This needs to be made retroactive
I’m not sure if the will be reviewing this as well
Can you please tell me if they are

Posted by: Keysha | May 28, 2023 9:34:31 AM

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