Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

In this April post, 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, after proposing these criminal history amendments, the Commission sought comment on whether it should make the key parts "available for retroactive application." 

As detailed in this May post, the USSC thereafter published on its website this 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is how I roughly summarized this analysis: "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."

As flagged in this June post, the Commission has scheduled a public hearing for Wednesday, July 19, 2023, in order "to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment."  As the USSC explained in its hearing notice, "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."  

When announcing the public hearing, the Commission also here released a massive Compilation of Public Comment.  Running over 250 pages, these public comments are quite interesting with a wide range of persons making a wide range of arguments both in favor and against retroactivity of these criminal history amendments.  For a slightly more efficient overview of all the pros and cons, the Commission has now posted here the written testimony of the 15 witnesses scheduled to testify all the full-day USSC hearing starting at 9am on Wednesday, July 19.

I am inclined to guess that the US Sentencing Commission is inclined to make its new criminal history rules fully retroactive, but I do not think any outcome is a given.  Notably, the Justice Department's statement "opposes retroactive application of both Parts A and B of the criminal history amendment," and, in case of a retroactive vote, has requested "that the Commission delay implementation of retroactivity by at least nine months to allow the Bureau of Prisons and the U.S. Probation Office sufficient time to properly prepare and coordinate reentry services for eligible offenders."  Both the particulars and process for retroactivity may be widely debated during the hearing.