Case Study: Retroactive Application of Amendment 821 in Federal Courts

The Long Road to Fairer Sentencing: Retroactive Application of Amendment 821

In August 2023, the U.S. Sentencing Commission voted 4-3 to allow the delayed retroactive application of Amendment 821 to the federal sentencing guidelines. This is a big, big deal for many federal inmates and their families. Amendment 821, which takes effect November 1, 2023, reduces sentences for certain non-violent offenders by lowering their criminal history score. And now, starting February 1, 2024, inmates can ask courts to reduce their sentences under the amendment’s new rules.

This retroactive change provides hope for thousands of inmates serving long sentences under the old guidelines. Families are cautiously optimistic their loved ones may get a second chance. But the road ahead is long – for inmates, judges, prosecutors, and public defenders. There are legal complexities around retroactive application, and judges have discretion whether to grant reductions. Still, this marks an important step toward fairer sentencing.

What Amendment 821 Does

Amendment 821 creates a new section of the guidelines, 4C1.1, that lowers sentences for certain “zero-point offenders” – defendants who received no criminal history points under the old rules. It provides a 2-level decrease in the offense level determined in Chapters 2 and 3 of the guidelines. This applies to defendants who:

• Received zero criminal history points
• The current offense did not involve aggravating factors like violence, firearms, minors, or controlled substances

The aim is to reduce overly harsh sentences for first-time and low-level drug offenders. Under the old rules, some received decades in prison for non-violent crimes based largely on drug quantities involved. Amendment 821 helps fix these disproportionate punishments.

The Long Road to Retroactive Application

In the past, sentencing reforms weren’t retroactive – meaning inmates sentenced under old rules stayed there. But after years of advocacy by groups like Families Against Mandatory Minimums, that changed. Now, the Commission can decide to apply changes retroactively, allowing inmates to petition for resentencing.

However, it’s a lengthy process. First, the Commission votes on an amendment and sends it to Congress. If Congress doesn’t act, it becomes law November 1st. Then, the Commission votes on retroactivity. If approved, courts can start re-sentencing inmates February 1st the following year. From vote to release takes over a year!

Amendment 821 passed this whole process. The Commission voted for retroactivity on August 24, 2023. So starting February 1, 2024, inmates can petition courts for resentencing under the new rules. Those approved will be released no earlier than November 1, 2024 – over two years after the initial Commission vote!

What Happens Next

Starting February 1st, federal inmates can file a motion with their sentencing court requesting resentencing under Amendment 821. If the court determines they’re eligible, it can re-calculate their guidelines range with the 2-level decrease. The court then decides whether to reduce the sentence accordingly.

Both prosecutors and federal defenders will be busy filing motions and arguing cases. Courts expect a surge of requests. Some appointed extra staff. The District of Colorado issued procedures to handle the high volume.

The outcome depends on the judge. They aren’t required to reduce sentences, even if the inmate qualifies. Some judges may stand by the original sentence, while others are more open to change. Families hope compassion prevails.

The Impact

The Sentencing Commission estimates around 2,000 inmates will get reduced sentences under retroactive 821, with an average reduction of nearly 3 years. That’s thousands of years of unnecessary prison time.

Recidivism may also decrease. Studies show longer sentences don’t reduce repeat offenses – if anything, the opposite. Lower sentences combined with reform programs give inmates a better shot at restarting life.

There are also major cost savings. The Commission estimates retroactive 821 will save $60 million in the first five years by reducing incarceration. And that doesn’t count economic benefits of people returning to work and family sooner.

The Future

While impactful, Amendment 821 is just one small reform. Much work remains to create a just federal sentencing system after decades of harsh mandatory minimums and mass incarceration. The Commission’s latest priorities include reviewing mandatory minimums, compassionate release, and how sentences account for age and personal history.

There is hope that Amendment 821 signals a broader shift toward reform. Congress recently passed the FIRST STEP Implementation Act with bipartisan support. While there’s still resistance, the tide seems to be turning.

But lasting change requires public pressure. Call your representatives and ask them to support reforms like retroactivity. Get involved with groups like FAMM advocating for change. And vote for candidates committed to creating a fairer system. The long road ahead requires all of us to speak out.

References

[1] Retroactivity of Amendment 821
[2] USSC Press Release on Retroactivity
[3] Federal Register on Amendment 821
[4] USSC Materials on 2023 Amendment
[5] Federal Register PDF on Amendment 821
[6] District of Colorado Procedures