Projecting When Retroactive Sentence Reductions May Happen After Amendment 821

On August 24, 2023, the U.S. Sentencing Commission voted to allow delayed retroactive application of Amendment 821 relating to criminal history calculations in federal sentencing guidelines[2]. This amendment, which goes into effect on November 1, 2023 if Congress does not reject it, will allow certain incarcerated individuals to request sentence reductions from the courts starting on that date[1]. But any actual reductions granted by judges will not take effect until February 1, 2024 at the earliest[2].

So what does this all mean? Let’s break it down step-by-step and look at how and when retroactive sentence reductions may happen under Amendment 821.

What Does Amendment 821 Change?

Amendment 821 makes targeted changes to the way criminal history is calculated under federal sentencing guidelines. Specifically, it makes two key modifications[4]:

• It reduces the impact of older, less serious prior convictions on a defendant’s criminal history score by limiting the number of points that can be added for certain older sentences under Section 4A1.1 of the guidelines.
• It allows judges to consider a downward departure for defendants with very minimal criminal history under a new provision, Section 4C1.1.

The overall impact is to reduce sentences for certain defendants with older, minor priors who would have received longer sentences under the old rules. The Commission estimated these changes could potentially reduce sentences for about 2,400 offenders per year[2].

What Does Retroactivity Mean?

Normally, changes to the guidelines only apply to future cases – defendants sentenced after the new rules go into effect. But the Commission has the ability to make certain amendments retroactive[4]. This means the changes can also apply to defendants who were already sentenced under the prior rules.

For Amendment 821, the Commission voted to allow retroactive application after a delay. This means that starting on November 1, 2023, inmates serving sentences under the old rules can file motions in court requesting that their sentences be reduced under the new rules[1].

Who Will Be Eligible for Retroactive Reductions?

Not every federal inmate will be able to get a sentence reduction under the retroactive part of Amendment 821. There are a few key criteria[4]:

• You must have been sentenced before November 1, 2023 when the amendment went into effect.
• Applying the new criminal history rules has to actually lower your guideline range – if your range stays the same, you won’t be eligible.
• Your offense can’t fall under an exclusion – certain serious offenses like child crimes, terrorism, and sex offenses are excluded.

The Sentencing Commission estimates around 20,000 inmates will potentially be eligible for reductions[3]. But meeting the criteria doesn’t guarantee a reduction – it just means you can ask the court to revisit your case.

What Will the Retroactive Process Look Like?

Starting November 1, 2023, eligible inmates can file a motion in federal court requesting that their sentence be reduced under Amendment 821[1]. This starts a multi-step process:

1. Inmates file motions in the court that originally handled their sentencing.
2. The probation office prepares a report analyzing whether a reduction is appropriate based on the inmate’s criminal history and offense.
3. The judge reviews the motion and decides whether to grant a reduction and how much to reduce the sentence by.
4. If a reduction is granted, the inmate’s release date gets recalculated based on the lower sentence.

But here’s the catch – even if a judge grants a reduction right away in November or December 2023, the inmate won’t actually be released from prison until February 1, 2024 at the earliest[2]. This delay gives the prison system time to process all the expected motions and handle inmate releases in an orderly way.

What Kind of Sentence Reductions Can Inmates Expect?

There’s no guarantee a judge will grant a reduction at all. But for those who do get reductions, the amount will vary case by case. Some key factors judges can consider[4]:

• How much did the guideline range actually decrease based on the criminal history changes?
• Was the original sentence a departure from the old guidelines for any reason?
• How much of the sentence has already been served?
• What is the inmate’s behavior and rehabilitative progress during incarceration?

Inmates who already got big departures below the guideline range are less likely to get a further reduction. The Commission estimates the average reduction will be around 17 months for those who get relief[3].

What Should Inmates Do to Prepare?

Inmates interested in seeking a reduction under Amendment 821 should start preparing now[5]:

• Get a copy of your presentence report and sentencing documents to review your criminal history points and original guideline range.
• Calculate what your new range would be under the amended guidelines.
• Start drafting your motion making the case for a reduction.
• Gather evidence of your rehabilitation while incarcerated.
• Consider consulting an attorney for help navigating the process.

Doing this groundwork now will help ensure motions are ready to file on November 1.

What Should Families of Inmates Do?

For family members of incarcerated individuals, here are some tips[5]:

• Help your loved one obtain paperwork needed to assess eligibility and draft a motion.
• Consider contacting an attorney who can advise if your loved one may qualify for a reduction.
• Make sure your contact information is up to date with the Bureau of Prisons so you get notified if release dates change.
• Be aware of potential release dates starting February 1, 2024 as you make plans for reentry.

Preparing now and being informed about the process will allow you to provide better support.

What Are Some Potential Pros and Cons?

Allowing retroactive application of Amendment 821 has some notable potential pros and cons:

Potential Pros:

• Gives relief to inmates potentially over-sentenced under old minor criminal history rules[6].
• Reduces overcrowding and costs for the Bureau of Prisons[6].
• Corrects disproportionate impacts on minorities from older guidelines[3].
• Allows rehabilitation and good conduct to be considered in re-sentencing[4].

Potential Cons:

• Retroactive reductions have been criticized as being “soft on crime”[6].
• Could impose burdens on courts, prosecutors, and public defenders handling motions[3].
• Earlier releases may impact community reentry programs and supervision[6].
• Victims and families may feel they are re-living the case and original sentence[4].

Overall, many see the pros outweighing the cons for giving eligible inmates a chance at a fairer sentence. But the process will need to be managed carefully to avoid overburdening the courts and probation system.

What Comes Next?

Here’s a quick recap of the expected timeline[1]:

• November 1, 2023 – Effective date for Amendment 821. Motions for retroactive reductions can start being filed.
• November 2023 to January 2024 – Courts process motions for reductions but inmates remain incarcerated.
• February 1, 2024 – Earliest date reduced sentences can go into effect and inmates can be released.
• Rest of 2024 – More inmates are released on a rolling basis as courts process motions.

The months ahead will show how many inmates actually get relief from Amendment 821 retroactivity and what impact it has on the federal prison population. Careful planning and coordination will help ensure this significant change is implemented smoothly.

References

[1] Materials Relating to the 2023 Criminal History Amendment – United States Sentencing Commission

[2] August 24, 2023 Press Release – United States Sentencing Commission

[3] SentencingStats.com Uniquely Poised to Assist with Retroactive Application of Amendment 821 – KRON4

[4] Understanding Sentence Reduction Orders Under Amendment 821 Retroactivity – Federal Criminal Lawyers

[5] Federal Sentence Reduction – Amendment 821 – Chapman Law Group

[6] GAO-14-821, Bureau of Prisons: Information on Efforts and Potential Options to Save Costs – Government Accountability Office