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Obstacles and Solutions in Amendment 821 Retroactive Resentencing
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Obstacles and Solutions in Amendment 821 Retroactive Resentencing
On August 24, 2023, the U.S. Sentencing Commission voted 4-3 to allow for delayed retroactive application of Amendment 821 relating to criminal history—meaning that certain currently incarcerated individuals could be eligible for reduced sentences starting February 1, 2024[1]. This is a big deal that could impact thousands of people. But what does it all mean, what are the obstacles, and what are possible solutions? Let’s break it down.
What is Amendment 821?
Amendment 821 creates a new section in the sentencing guidelines called “Adjustment for Certain Zero-Point Offenders[2]. It provides a 2-level decrease from the offense level for defendants who:
- Didn’t receive any criminal history points under Chapter 4
- Whose instant offense didn’t involve certain aggravating factors like violence, firearms, terrorism etc.
In simple terms, some people with little or no criminal history could get a few months to a few years shaved off their sentence[3]. This impacts non-violent crimes like low-level drug offenses or white collar crimes the most.
Who is Eligible?
The amendment could benefit around 11,000 people currently in federal prison who meet the criteria[4]. However, there are certain groups who won’t get any benefit:
- Those involved in terrorism
- Those who used violence or credible threats of violence
- Certain sex offenders
- Those with prior felonies or misdemeanors
So it really focuses on first time, non-violent offenders.
What’s the Process?
Eligible individuals can file a motion with the court asking for a sentence reduction starting November 1, 2023[3]. If the court grants it, the person could be released as early as February 1, 2024. There will likely be a flood of requests, so the courts may take some time to get through them all.
The burden is on the petitioner to show they qualify and deserve the reduction. They’ll need a good lawyer to navigate the process and put together a persuasive case.
Potential Obstacles
While this amendment offers hope, there are some potential obstacles incarcerated people could face:
- Inability to afford a lawyer – Many will need legal help to file and argue their motion but can’t afford representation[5]. Non-profits and pro bono work could help fill this gap.
- Lost records – Some may struggle to prove they qualify if their records were lost or destroyed over time.
- Court backlog – Courts will likely be flooded with petitions and may take a long time to get to cases[6].
- Judicial discretion – Even if someone qualifies, the judge has discretion whether to grant the reduction or not.
- Re-entry challenges – After release, returning citizens face obstacles like finding housing and work.
Possible Solutions
While obstacles exist, there are also solutions that could help make this amendment work as intended:
- Provide funding for legal aid and representation
- Use probation records, court documents, and affidavits to reconstruct records
- Add more judges and court staff to handle the influx of petitions
- Encourage judges to exercise discretion in favor of reductions
- Expand re-entry programs to help with housing, jobs, and transition
This amendment represents an important step forward. With smart implementation, it can correct excessive sentences and give deserving individuals a second chance. But it will require a coordinated effort between courts, lawmakers, non-profits, and communities.
What are your thoughts? I’d love to hear perspectives on this issue and ideas around implementation. Please share in the comments!
References
[1] U.S. Sentencing Commission
[3] Forbes
[4] U.S. Sentencing Commission