US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules

In this post last month, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines. The big ticket items in the proposed amendments concern "status points" and "zero-point offenders"; as detailed here, the Commission has officially sought comment on whether it should make these key parts of its new criminal history amendment "available for retroactive application."

Today, the USSC publish on its website this new 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is  how the memo gets started:

On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual.  Specifically, Part A of the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), and Part B, Subpart 1 provides a twolevel downward adjustment for certain offenders with zero criminal history points under the guidelines (“zero-point offenders”).  Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.  As required by its Rules of Practice and Procedure,  the Commission voted at the April 5, 2023 public meeting to instruct staff to prepare a retroactivity impact analysis to aid the Commission in determining whether to do so.  This memorandum provides that analysis.  

Part I of this memorandum summarizes the operation of the 2023 criminal history amendment applicable to “status points” and “zero-point offenders.”  Part II of the memorandum provides background on the statutory authority and guidelines policy statement governing retroactive application of amendments to the federal sentencing guidelines, noting the factors to be considered in the Commission’s decision regarding retroactivity. Part III of the memorandum provides an estimate of the impact of Parts A and B, Subpart 1 of the amendment if the Commission were to authorize the courts to apply these parts of the amendment retroactively.  Part IV of this memorandum describes how the analysis was performed.

Here is the summary of the details of the USSC's analysis of who would benefit from retroactive application of its proposed criminal history amendments:

Staff estimates that there are 50,545 offenders in the custody of the Federal Bureau of Prisons (BOP) as of January 28, 2023, who were assigned status points at sentencing (“status points offenders”)....  Staff estimates that approximately one-quarter (22.7%, n = 11,495) of the 50,545 status points offenders would have a lower guideline range if the Commission were to make Part A of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 106 months, a reduction of 14 months (or 11.7%).  The offenders would be released over a period of many years....

Staff estimates that there are 34,922 offenders in BOP custody as of January 28, 2023, for whom no criminal history points were assigned under Chapter Four, Part A of the Guidelines Manual when sentenced for their instant offense.  Of those 34,922 zero-point offenders, 12,574 meet the criteria in Part B, Subpart 1 of the 2023 Criminal History Amendment.  Staff estimates that slightly more than half (57.8%, n = 7,272) of those offenders would have lower guideline range if the Commission were to make Part B, Subpart 1 of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).  The offenders would be released over a period of many years.

Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.