Retroactivity Of Amendment 821 To Federal Sentencing

The Retroactivity of Amendment 821 to Federal Sentencing

On August 24, 2023, the U.S. Sentencing Commission voted 4-3 in favor of the delayed retroactive application of Amendment 821, which relates to criminal history calculations in federal sentencing guidelines. This significant move makes certain inmates eligible for reduced sentences, with the changes taking effect on February 1, 2024.

Amendment 821, which goes into effect November 1, 2023 and will apply to current cases and retroactively, introduces a new section 4C1.1 to the guidelines. This section provides a two-level decrease from the offense level for defendants who received no criminal history points and whose offense did not involve certain aggravating factors.

The two-level decrease applies to offenders who:

• Received zero criminal history points under Chapter Four, Part A of the guidelines, and
• Their offense did not involve aggravating factors like terrorism, violence, firearms, serious drug trafficking, or offenses against minors.

This change will primarily benefit those convicted of lower-level drug offenses or white-collar crimes who have no or very minor criminal histories. Estimates suggest around 2,700 federal inmates will be eligible for immediate release once the amendment takes effect in February, with thousands more benefitting from reduced sentences down the road.

Proponents argue the change is a common-sense reform that will help correct overly harsh sentences handed down during the “tough on crime” era. They say giving modest sentencing relief to first-time, low-level offenders improves fairness and proportionality in the system.

However, critics counter that the amendment amounts to a blanket reduction that could let dangerous offenders out early. They warn of possible public safety risks from releasing inmates before they serve their full sentences.

The Amendment Process

Amendment 821 represents the culmination of a lengthy and complex process to modify federal sentencing guidelines. Here’s an overview:

1. The Sentencing Commission, an independent agency in the judicial branch, drafted and proposed the amendment.
2. The proposed amendment was published in the Federal Register and opened to a comment period for public feedback.
3. After considering the comments, the Commission voted on whether to promulgate the amendment.
4. The amendment was submitted to Congress, which had 180 days to modify or disapprove it under the Sentencing Reform Act.
5. Absent action from Congress, the amendment became effective November 1, 2023.
6. Separately, the Commission voted to apply the amendment retroactively with a delayed effective date of February 1, 2024.

This rigorous process allows for significant public input and oversight of changes to the guidelines. However, some argue it takes too long and limits the Commission’s ability to respond nimbly to needed reforms.

Determining Eligibility

The February 2024 effective date means federal inmates will soon be able to petition courts for resentencing under Amendment 821. However, determining who is eligible may prove complicated.

Defense attorneys will need to review sentencing documents to confirm clients did not receive any criminal history points under Chapter Four and their offense did not involve disqualifying factors. The probation office that prepared the original presentence report is the best source for this information.

Prosecutors will also review eligibility factors. Some may argue against resentencing certain inmates despite their apparent eligibility under a strict reading of the amendment.

Ultimately, federal judges will make the final determination on each resentencing petition. Judges have discretion to consider factors like an inmate’s behavior in prison when deciding whether to grant a reduced sentence.

The Sentencing Commission estimates around 11,000 inmates will see lower guideline ranges under Amendment 821. But the actual number who receive relief may vary depending on eligibility determinations and judicial discretion.

Potential Impact

Assuming all 11,000 estimated inmates do receive reduced sentences, what would be the impact?

The Sentencing Commission projects an average reduction of 57 months for those inmates. That means roughly 636,000 total months, or 53,000 years, could be shaved off federal prison sentences.

Releasing or reducing the sentences of thousands of inmates will also impact the Federal Bureau of Prisons. The agency may need to hire additional case managers and other staff to handle the influx of resentencing petitions and releases.

Some also hope applying Amendment 821 retroactively will help reduce overcrowding in federal prisons. The inmate population ballooned in recent decades due to mandatory minimums and other “tough on crime” policies, straining BOP resources.

However, because releases will be staggered over coming years, the amendment’s impact on overcrowding may be modest. And state prisons house the vast majority of U.S. inmates, so any federal changes have limits.

Responses and Analysis

Reactions to the Sentencing Commission’s vote have been mixed:

• Civil rights groups praised the move. The ACLU said it “represents much needed progress, though only a first step, in righting the wrongs of our broken criminal legal system.
• Conservative organizations like FreedomWorks opposed retroactivity, arguing it amounted to early release for dangerous criminals.
• Some members of Congress introduced bills to block the amendment, but none gained traction.
• Prosecutors’ views were split, with some expressing public safety concerns while others welcomed recalibrating outdated guidelines.
• Many federal judges support the change. Supreme Court Justice Sonia Sotomayor previously indicated the Commission should make any sentencing reforms retroactive.

On balance, making Amendment 821 retroactive seems a positive step. Though not without risks, offering modest relief to low-level first offenders helps move the federal criminal justice system in a fairer direction.

However, the Commission must continue monitoring outcomes under the revised guidelines. If any concerning trends emerge, they should revisit the amendment.

Broader reforms are also needed. Most incarcerated individuals are in state, not federal, prisons. And sentencing is just one piece of the larger criminal justice puzzle.

Ending harsh mandatory minimum sentences, boosting rehabilitation programs, reconsidering collateral consequences, and improving prison conditions require attention too. Amendment 821 does not solve these systemic issues, but may offer a template for how incremental, evidence-based reforms can improve justice.

References

U.S. Sentencing Commission. “Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2023, and request for delayed retroactive application for one amendment.” [1]

Varghese Summersett PLLC. “Retroactivity of Amendment 821 to Federal Sentencing.” [2]

U.S. Sentencing Commission. “August 24, 2023.” [3]

Federal Register. “Sentencing Guidelines for the United States Courts.” [4]

Forbes. “Sentencing Commission OKs Retroactive Reduction For Many Inmates.” [5]

CBS 42. “SentencingStats.com Uniquely Poised to Assist with Retroactive Application of Amendment 821.” [6]