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Does Amendment 821 Violate the Constitution’s Ex Post Facto Clause? A Legal Analysis
Does Amendment 821 Violate the Constitution’s Ex Post Facto Clause? A Legal Analysis
Amendment 821 is a recent change to the United States Sentencing Guidelines that affects how a defendant’s criminal history is calculated when determining their sentence. Specifically, Amendment 821 limits the impact of “status points” for things like probation and parole violations. It also creates an adjustment that can reduce sentences by 2 levels for defendants with no criminal history points whose instant offense is not serious.
With the U.S. Sentencing Commission’s vote on August 24, 2023 to apply Amendment 821 retroactively starting February 1, 2024, many are questioning whether this violates the Ex Post Facto clause of the Constitution (Article I, Section 9). Let’s break down the legal analysis:
What is the Ex Post Facto Clause?
The Ex Post Facto clause prohibits laws that retroactively change the rules to punish past conduct more harshly. There are 4 types of prohibited ex post facto laws:
- Laws that criminalize and punish conduct that was legal when originally committed
- Laws that increase the punishment for a crime after it was committed
- Laws that deprive the accused of a defense available at the time the crime was committed
- Laws that alter rules of evidence to require less or different testimony to convict the offender
So the question is – does applying Amendment 821 retroactively fall into any of those prohibited categories?
Does the Retroactive Application Increase Punishment?
The central issue is whether Amendment 821’s retroactive application increases the punishment for past crimes. Opponents argue it does by reducing sentences that were already handed down. However, proponents point out that the Sentencing Guidelines themselves are advisory, not mandatory. Judges have always had discretion to issue sentences outside the guidelines.
Supreme Court precedent supports the notion that retroactively changing advisory guidelines to be more favorable to defendants does not violate the Ex Post Facto clause. For example, in Dorsey v. United States (2012), the Court ruled that applying reduced crack cocaine guidelines retroactively was not an ex post facto violation because the guidelines are advisory.
The retroactive application of Amendment 821 similarly does not mandate judges to reduce sentences, it just gives them discretion to do so. It does not definitively increase punishment for any past crimes. Therefore, it likely does not violate the Ex Post Facto clause.
Does Amendment 821 Change Evidentiary Rules?
Some argue that Amendment 821 changes evidentiary rules by altering the way criminal history is calculated, requiring less evidence of recidivism to reduce sentences. However, the Supreme Court has ruled that changes to just the weight given to evidence does not violate the Ex Post Facto clause – the rules of admissibility must change.
Amendment 821 does not alter the admissibility of any evidence, it simply reduces the weight given to certain status points in calculating criminal history. So again, it likely does not violate the Ex Post Facto clause.
What About Fairness Arguments?
Beyond constitutionality, there are debates around the fairness of applying Amendment 821 retroactively. Some argue it is unfair to reduce sentences already handed down, while others point out it would be unfair to only extend favorable changes prospectively.
While retroactivity could be seen as undermining finality, allowing those still serving outdated sentences to benefit from reforms arguably promotes justice and rehabilitation. It reflects an evolving understanding of proportionality in sentencing.
There are good faith arguments on both sides of this issue. However, constitutionally there is a strong case that applying Amendment 821 retroactively does not violate the Ex Post Facto clause.
What Should I Know About Amendment 821?
Here are some key facts about Amendment 821:
- Takes effect November 1, 2023, applying to new cases going forward
- Limits the total increase in criminal history points from “status points” to 4 points
- Creates a 2 level decrease in offense level for defendants with zero criminal history points, if the instant offense is not otherwise serious
- The Sentencing Commission voted on August 24, 2023 to apply parts of Amendment 821 retroactively, starting February 1, 2024
- Retroactive application could reduce sentences for around 2,000 current federal inmates according to the Commission’s analysis
- Eligibility requires meeting certain criteria, such as not having a history of violence
Defense attorneys can petition courts for reduced sentences under Amendment 821 starting in February 2024. Each case will be evaluated individually to determine eligibility and whether a reduced sentence is appropriate.
What Should I Do If I’m Impacted?
If you may be eligible for a reduced sentence under the retroactive application of Amendment 821, here are some steps to take:
- Consult with your criminal defense attorney to assess your eligibility
- Have your attorney review your criminal history points and status points specifically
- Determine if you meet the criteria for the 2 level offense decrease
- Calculate what your new guideline range could potentially be under Amendment 821
- Have your attorney petition the court for a reduced sentence starting February 1, 2024
Meeting with an experienced federal criminal defense attorney is key, as they can help analyze your case and advocate for a reduced sentence if you may qualify. Don’t leave it to chance – be proactive if Amendment 821 could potentially impact your sentence.
While there are nuanced legal debates around Amendment 821’s retroactivity, the bottom line is it offers a real opportunity for sentencing relief to many current federal inmates. Taking action to pursue that opportunity is important, but should be done with the guidance of expert legal counsel.