Retroactive Application of Amendment 821

The U.S. Sentencing Commission recently voted to allow the retroactive application of Amendment 821, which makes big changes to how criminal history is calculated for federal sentencing guidelines. This is a really big deal that could let lots of people currently in prison get their sentences reduced starting in February 2024.

Amendment 821 goes into effect on November 1, 2023 and will apply to current cases. But the Sentencing Commission also voted to apply it retroactively to people already serving their sentences. This article will explain what Amendment 821 does, who can benefit from the retroactive application, and how they can get their sentences reduced.

What Does Amendment 821 Do?

Amendment 821 makes two main changes to the sentencing guidelines:

1. It limits the impact of “status points” for things like being on probation or parole when committing a new offense. This is in Section 4A1.1 of the guidelines.
2. It creates a new Chapter 4 guideline, Section 4C1.1, that reduces sentences by 2 levels if someone got no criminal history points and committed a non-violent, not-too-serious crime. This is a big change.

So in short – Amendment 821 helps people who got a lot of “status points” for being on probation and whatnot when they re-offended. And it gives a 2 level decrease to people with no criminal history who did minor crimes.

Who Can Get Retroactive Sentence Reductions?

The Sentencing Commission estimates around 2,000 current federal inmates could get their sentences cut short under the retroactive application of Amendment 821. But not everyone will qualify.

There’s a few main requirements to get a retroactive reduction:

• You must already be serving your sentence right now.
• Your sentence must have been final before November 1, 2023 when the amendment takes effect.
• You have to qualify under one of the changes in Amendment 821 described above.

The court also has to decide if reducing your sentence poses a risk to public safety. But if you meet the requirements, you have a good chance of getting a shorter sentence starting in February 2024.

How Can Inmates Get Their Sentences Reduced?

Prisoners who qualify under Amendment 821 don’t automatically get their sentences reduced. They have to file a motion with the court that sentenced them asking for a sentence reduction under the retroactive application of Amendment 821.

The process goes like this:

1. You calculate what your new guideline range would be under Amendment 821. This can be tricky so getting a lawyer to help is best.
2. File a motion for a reduced sentence citing Amendment 821. Explain why you qualify and what your new range is.
3. The judge reviews your motion and decides whether to reduce your sentence or not. They may hold a hearing.
4. If approved, the judge enters an order reducing your sentence. This can’t happen before February 1, 2024.

The court has a lot of discretion in deciding these motions. Having an lawyer to help argue for a reduction is important.

What Are the Pros and Cons of This Retroactive Application?

Like any big policy change, there are good and bad things about applying Amendment 821 retroactively to current inmates:

Pros:

• Lets people get out of prison years early.
• Fixes unfair sentences from the past.
• Makes families and communities whole sooner.
• Saves taxpayer money on prison costs.
• Incentivizes rehabilitation and good behavior in prison.

Cons:

• Could let some dangerous people out of prison early.
• Undermines truth in sentencing policies.
• Causes logistical challenges for courts and prisons.
• May be seen as soft on crime by some.

On balance most see this as a positive change, but there are reasonable arguments on both sides.

What’s Next?

The Sentencing Commission published the final text of the retroactive application policy on August 31, 2023. Unless Congress acts to block it, the policy will go into effect on November 1, 2023 as planned.

Starting on that date, inmates can file motions for reduced sentences under Amendment 821. But courts cannot actually reduce any sentences until February 1, 2024.

Thousands of federal inmates will likely get their sentences reduced thanks to this retroactive application. But it will take a lot of work by the courts, prosecutors, defense lawyers, and prison officials to process all the applications.

For now, potential beneficiaries should educate themselves on Amendment 821 and start preparing their case for a sentence reduction beginning in early 2024.

References

• Preliminary Unofficial Text of Retroactive Application of Parts A and B, Subpart 1 of Amendment 821
• “Reader-Friendly” Version of Retroactivity Amendment (Effective November 1, 2023)
• Retroactivity of Amendment 821 to Federal Sentencing – Varghese Summersett PLLC
• Case Study: Retroactive Application of Amendment 821 in Federal Courts
• Retroactive Application Of New Criminal History Guidelines Amendment 821 – FD.ORG
• Retroactivity Of Amendment 821 To Federal Sentencing – Federal Criminal Lawyers