Amendment 821 and Retroactivity: What Inmates and Families Should Know

Amendment 821 and Retroactivity: What Inmates and Families Should Know

The recent passage of Amendment 821 to the U.S. Sentencing Guidelines is a big deal for many federal inmates and their families. This amendment makes changes to how criminal history is calculated, which could lead to reduced sentences for some prisoners. Here’s what you need to know about Amendment 821 and its retroactive application.

What is Amendment 821?

Amendment 821 is an update to the sentencing guidelines that:

• Reduces recommendations for drug offense sentences
• Changes how criminal history points are calculated, which could lower sentences
• Makes it easier for judges to go below mandatory minimums
• Rewards cooperating with authorities

The main focus is on changing how criminal history points are tallied. Right now, you can get points for things like old convictions, probation violations, and other minor issues that ratchet up your criminal history score. Amendment 821 changes some of these rules so your score is lower, which leads to a lower sentencing range.

This amendment passed on August 31st, 2023. And here’s the big news – some sections were made retroactive starting February 1st, 2024! This means the changes can apply to inmates already serving time under the old rules.

Who can benefit from retroactivity?

The U.S. Sentencing Commission estimates around 11,000 federal prisoners may see lower sentences because of Amendment 821 retroactivity. The biggest groups who stand to benefit are:

• Those with minor criminal histories wrongly scored too high
• Low-level drug offenders
• Non-violent offenders
• First-time offenders

However, retroactivity does not apply to all prisoners. It depends on your specific criminal history and conviction. Your lawyer can analyze your case to see if you might qualify.

What’s the process for retroactive relief?

If you are already serving a federal sentence, here are the key steps in the retroactivity process:

1. You must file a motion with your sentencing court seeking a reduction under 18 U.S.C. § 3582(c)(2). This allows the judge to revisit your case.
2. The court will appoint a lawyer if you cannot afford one.
3. Your lawyer will analyze if Amendment 821 changes your guideline range. If so, they will file a strong motion explaining why you deserve a reduced sentence.
4. The judge will review your motion and decide whether to lower your sentence. They do not have to grant relief, even if you qualify.
5. If approved, the new sentence can be ordered effective February 1, 2024 at the earliest. This is the retroactive date set by the Sentencing Commission.

As you can see, retroactive relief is not automatic. You need to take action by filing a motion and convincing the judge. But this process now gives inmates a chance to correct unfair sentences under old guidelines.

What should I do now?

If your family member or loved one may qualify for retroactive relief, here are some steps:

• Contact their federal public defender or lawyer. Have them analyze how Amendment 821 could lower their range.
• Gather documents from the original sentencing to assist the lawyer.
• File the § 3582(c)(2) motion as soon as possible. The court can take months to rule, so you want to get in line.
• Keep in touch with the lawyer throughout the process for case updates.
• Don’t get hopes up too high. Retroactive relief is not guaranteed. Manage expectations.
• Start preparing for release just in case. Line up job options, housing, transportation, etc.
• Stay positive! This gives many inmates a chance to correct unfair sentences.

What are the risks of retroactivity?

While Amendment 821 retroactivity offers hope for many inmates, there are also risks and downsides to consider:

• No guarantee of relief – Judges can still deny motions even if the inmate qualifies.
• Disparity – Some inmates will get relief, others won’t, which critics argue is unfair.
• Overcrowding – Prisons could see a surge in releases they are unprepared for.
• Administrative burden – Courts may be overwhelmed with retroactive motions.
• Public safety – Opponents argue releasing inmates early creates risk.
• Finality – Retroactivity undermines the finality of sentences, which is an important principle.

These are all valid concerns weighed heavily by the Sentencing Commission. But they ultimately decided the benefits outweigh the risks in many cases.

What’s next?

Now that Amendment 821 retroactivity has been approved, here’s what happens next:

• Congress has 180 days to review, but likely won’t overturn the decision.
• On November 1, 2023, the amendment becomes law if Congress does not act.
• Courts can start ordering reduced sentences on February 1, 2024.
• Hundreds of inmates will immediately qualify for relief.
• Thousands more will qualify over time as they file motions.
• Prisons will begin releasing inmates earlier throughout 2024.

This is an ongoing process, but February 1, 2024 is a major milestone when retroactive relief can start being implemented.

Conclusion

Amendment 821 retroactivity offers hope for many inmates and families that unfair sentences can be corrected. But it also involves risks and downsides. This will be a complex process playing out over years. The best thing families can do now is connect with lawyers to analyze their options. February 2024 is right around the corner, so don’t delay in filing motions!