State Legislation Modeled on Amendment 821 Retroactivity

On August 24th, 2023, the U.S. Sentencing Commission voted to allow delayed retroactive application of Amendment 821 relating to criminal history calculations under the federal sentencing guidelines, according to a recent article on the Federal Lawyers website[1]. This amendment, which takes effect on November 1, 2023, makes several changes to how criminal history points are calculated, with the goal of reducing unwarranted sentencing disparities. Now, many states are considering similar legislation to make their own sentencing guidelines more fair.

The main provisions of Amendment 821 are:

• Limiting the impact of “status points” – the extra points given for things like being on probation or parole at the time of the offense
• Expanding the “lookback period” that counts prior sentences from 15 to 20 years
• Revising the “stacking” rules that can result in extra points when multiple prior sentences are counted separately

According to another article on the Federal Lawyers site, retroactive application of Amendment 821 is discretionary for judges[2]. They can revisit original sentences based on the changes to the guidelines, but are not required to. This retroactivity goes into effect on February 1, 2024 at the earliest.

The U.S. Sentencing Commission estimates around 11,500 currently incarcerated individuals could get lower sentences under Amendment 821, with an average reduction of 14 months. But some legal experts think the impact could be even greater[3].

Many states use sentencing guidelines modeled on the federal system. So it makes sense that states are now looking at making similar reforms. For example, in California, State Senator Dave Cortese introduced SB 312 in January 2023. It incorporates several provisions from Amendment 821 into the state’s sentencing guidelines.

Some key aspects of SB 312 include:

• Limiting prior convictions to only the most severe offense if multiple offenses were sentenced together
• No longer assessing extra points for certain drug offenses
• Allowing resentencing for those already serving time under prior guidelines

The bill analysis cites research showing longer prison terms do not necessarily deter crime or improve public safety. And California’s prison population has exploded in recent decades. So reforms aimed at reducing over-incarceration have bipartisan support.

However, SB 312 does differ from Amendment 821 in some ways. For example, it has no exclusions based on offense conduct or criminal history. The retroactive provisions would also take effect immediately if passed, rather than delayed until 2024. But the general principles are similar – recalculating sentences and criminal history points to be more fair.

Another state considering related legislation is Illinois. In February 2023, the Illinois Sentencing Policy Advisory Council recommended several reforms to the Illinois sentencing code. These include[4]:

• Reducing the impact of older prior convictions
• Capping criminal history points for non-violent offenses
• Limiting “double counting” of factors like injury to victims

While not tied directly to Amendment 821, these proposals are aimed at many of the same problems like over-counting criminal history and sentencing disparities. However, the recommendations would need to be passed by the legislature and signed into law by the governor to take effect.

Some criminal justice advocates have criticized Amendment 821 and related state proposals as too limited. For example, Families Against Mandatory Minimums said very few federal prisoners will actually get relief due to the exclusions and delayed implementation[5]. They recommend going further to address mass incarceration.

But many law experts still see Amendment 821 as a step in the right direction. The federal guidelines shape state policies, so broader reforms could be on the horizon. According to a legal blog from Varghese Summersett PLLC, “The retroactive application of Amendment 821 is expected to have a substantial and positive impact on sentencing reform across the country.”[6]

In summary, Amendment 821 makes significant changes to federal sentencing guidelines to recalculate criminal history points and reduce disparities. Several states are now looking to implement similar reforms. While some say the changes don’t go far enough, most agree it’s progress towards fairer sentencing. The full impact remains to be seen as laws are passed and implemented over the next few years.