Managing Expectations for Sentence Reductions Under Amendment 821 Retroactivity

Hey there! I wanted to write this article to help explain the recent changes to federal sentencing guidelines under Amendment 821 and what it could mean for people currently incarcerated in federal prisons. This stuff can be really confusing, even for lawyers, so I’ll try to break it down in simple terms.

What is Amendment 821?

Amendment 821 is a change made by the U.S. Sentencing Commission to the rules that determine how long federal prison sentences should be. It went into effect on November 1, 2023 and applies to new cases going forward. But the really big news is that the Commission also voted to apply Amendment 821 “retroactively.”

What does “retroactive” mean?

When the Commission changes the guidelines for how federal sentences get calculated, those changes are usually only for future cases. Making a change “retroactive” means it can apply to sentences that were already handed down under the old rules. So people who were sentenced before Amendment 821 took effect could now be eligible for lower sentences based on the new rules. Their cases can get re-opened for what’s called a “sentence reduction order.”

What does Amendment 821 change?

The main changes in Amendment 821 are:

• Getting rid of the rule that gave “recency points” for old offenses. This could help people who have minor criminal records from long ago.
• Reducing the extra points given for “career offenders.” Now the enhancement only applies to prior drug trafficking and crimes of violence.
• Capping the total criminal history points at 10 instead of 15. This helps avoid super long sentences for low-level crimes.

So in general, Amendment 821 focuses on not overly punishing people for old or minor crimes in their past. The Commission’s research found those old offenses often don’t predict new criminal activity as much as we used to think.

Who can get a sentence reduction?

The Sentencing Commission estimates around 7,272 federal inmates will be eligible for relief under the retroactive part of Amendment 821. However, the amendment does NOT apply to inmates who:

• Were sentenced as “career offenders” with crimes of violence or drug trafficking.
• Have convictions under 10 U.S.C. § 924(c) (for using a firearm during a crime).
• Have terrorism convictions.
• Have child crimes or sex offenses.

This change will primarily benefit inmates who were convicted of lower-level drug offenses or white collar crimes. For those groups, Amendment 821 retroactivity could result in reductions of months or even years off their sentences.

When can inmates start applying?

The Sentencing Commission voted to delay the effective date for retroactive applications to February 1, 2024. That means eligible inmates can start filing motions for reduced sentences on that date. The delay gives federal courts time to prepare for the extra workload.

In the coming months, the Sentencing Commission and Bureau of Prisons will be working to identify all the inmates who qualify under Amendment 821 retroactivity. Prisons should start notifying eligible inmates sometime in 2023.

How much time will people get off?

The amount of sentence reduction will vary case by case. But the Commission estimates the average decrease will be around 17.6% for those eligible. For a 10 year sentence, that would equal a reduction of about 1.76 years.

However, judges still have discretion in deciding how much to lower sentences. Some inmates may only see reductions of a few months, while others could get multiple years off.

What should inmates do now?

Eligible inmates will need to file a motion for a sentence reduction order after February 1, 2024. They don’t need to do anything before then.

We recommend inmates start gathering documents related to their original sentencing, so those are handy when it’s time to apply. Any evidence about rehabilitation while incarcerated could also help.

Inmates should be patient and avoid getting false hope. Even with Amendment 821 retroactivity, some inmates may not get the outcome they want. Managing expectations will be important.

Does this help people who already got released?

Unfortunately the retroactive part of Amendment 821 only applies to inmates still in custody. People who already completed their sentence can’t get it reopened and reduced under this change.

However, the non-retroactive parts of Amendment 821 will benefit defendants in new cases going forward. And the policy shift behind Amendment 821 could influence related reforms down the road. So there may be hope for helping those already released through other legal changes in the future.

What should family members know?

For family members of federal inmates, it’s important to understand Amendment 821 retroactivity is not automatic. Eligible inmates will need to take action by filing motions to get their sentences reduced.

We suggest contacting the federal public defenders office to see if they can provide assistance with the process. Family members can also contact inmates’ case managers to learn more about their eligibility status.

While Amendment 821 retroactivity provides new hope, families will need to be patient as the process unfolds. We encourage maintaining realistic expectations, as outcomes will vary.

Does this fix unfair sentencing overall?

Amendment 821 retroactivity is an important step, but much work remains to create a truly just federal sentencing system. The reforms are targeted in scope – broader changes would require action by Congress.

Racial disparities, mandatory minimums, and other deeply rooted issues still need addressing. We must keep pushing for more sweeping reforms while implementing changes like Amendment 821.

For now, thousands stand to benefit from reduced sentences under Amendment 821 retroactivity. And the Commission’s willingness to apply reforms retroactively is a positive sign. But the imperfections of federal sentencing require our continued advocacy.