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August 24, 2023

US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities

USSC-Seal_vFFThe US Sentencing Commission conducted an interesting and eventful public meeting earlier this afternoon (which can be watched here).   This new USSC press release provides the highlights in its first paragraph:

Today the Commission, by a majority vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text).  The Commission also adopted its next set of policy priorities that include, among other things, reviewing and potentially amending how the guidelines treat acquitted conduct for purposes of sentencing as well as assessing the degree to which certain Bureau of Prisons practices are effective in meeting the purposes of sentencing. 

Here are more of the details from the press release on what the criminal history retroactivity piece of the story means:

Equipped with a quorum of commissioners for the first time since 2018, the Commission voted in April to promulgate amendments to the federal sentencing guidelines — including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules.  Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals.

The Commission voted to delay implementation of any order granting such reduced sentences to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families.  We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”

Part A of Amendment 821 limits the overall criminal history impact of “Status Points” at §4A1.1. Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at §4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.

Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals.  Applying these changes retroactively will increase fairness in sentencing.  At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

  • 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
  • 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

Today’s vote concludes two months of deliberations and the first amendment year of policy work for the commissioners, who were all confirmed last August.  As part of its deliberations, the Commission received expert testimony and public comment from a wide spectrum of stakeholders, including senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated individuals.

This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

As for the new USSC policy priorities, here is more on that part of this dynamic story:

Today, the Commission also finalized policy priorities for the amendment year ending May 1, 2024.  In light of the 40th anniversary of the Sentencing Reform Act (SRA), the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the SRA.

Among these issues, the Commission will work to assess the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).  The Commission will also compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.

The Commission will also review and potentially amend how the guidelines treat acquitted conduct for purposes of sentencing.  The Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, three Justices supported the denial to allow the Commission more time to address the issue.  “Last year’s amendment cycle was busy and abbreviated.  The Commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” said Judge Reeves.

The Commission will continue to examine the career offender guidelines, including updating the data analyses and statutory recommendations made in the Commission’s 2016 report to Congress entitled Career Offender Sentencing Enhancements.  The Commission will also continue its consideration of alternative approaches to the “categorical approach” through workshops convened to discuss the scope and impact of the career offender penalty enhancements.

The Commission will further continue its research agenda through examination of various issues, including methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

WOWSA. That is a whole lot, and I hope to be able to cover some of the particulars of both the retroactivity decision and the policy priorities in more detail in the coming days and weeks.  For now, I will just say kudos to the US Sentencing Commission for doing all this hard and important work in a transparent and clear manner.

August 24, 2023 at 05:19 PM | Permalink


So 18K people out of roughly 145K total BOP folks will be eligible to file motions now?

That's incredible and an incredible amount of work. A few thoughts:
1) some districts will appoint the FPD and automatically screen defendants. Think USDC Maryland who did the same with Section 404 motions.

2) Every defendant will have to hire an attorney, purchase the sentencing transcript if not already transcribed and get a copy of the PSR and the SOR just to see if they are eligible. That's a lot more work than people appreciate.

3) ACCA, 11c1C, mandatory statutory minimum folks will have to be screened out or handled delicately upfront. These changes are frankly nuances that not even most CJA panel attorneys get.

Posted by: Zachary Newland | Aug 25, 2023 2:21:44 PM

The advocates against retroactivity argued, Zachary, that you are noting only half the story/complications because there may be tens of thousands of prisoners who may not know that they are not eligible who will still apply. The zero-point-offender provisions have vague exclusions -- eg, defendant "did not personally cause substantial financial hardship" -- that will need to be litigated to sort out. And the impact of status points on CH categories can also often be debated, so that's a matter also to likely produce much litigation.

As you note, these varied challenges have been surmounted, in varied ways, in the past with all sort of prior drug guideline reductions. But I expect judges to be somewhat more disinclined to grant reductions this time around even for those clearly eligible because (a) many received below-guideline variances initially, and/or (b) the perceived unfairness/severity of the CH guidelines are not as robust as for the crack/drug guidelines.

In short, it will be quite interesting to watch retroactivity play out.

Posted by: Doug B | Aug 25, 2023 5:29:58 PM

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