The Basics of Amendment 821 to Federal Sentencing Guidelines

The Basics of Amendment 821 to Federal Sentencing Guidelines

Amendment 821 to the Federal Sentencing Guidelines, which goes into effect November 1, 2023, makes some really important changes to how criminal history is calculated for federal sentences. This amendment could allow some people who are already in prison to get out earlier starting February 1, 2024. Let’s break down what it actually does.

What does Amendment 821 change?

There’s two big parts to Amendment 821 – Part A and Part B. Part A limits how much your criminal history score can go up just because of “status points,” which are extra points you get for things like committing a crime while you’re on probation or parole. Part B creates a new rule that can reduce sentences by 2 levels for some defendants who have zero criminal history points[3].

Part A – Limiting Status Points

Right now, your criminal history score goes up fast if you commit a crime while on probation, parole, work release, or escape status. You can get 2 or 3 extra points per prior sentence for this. Part A puts a cap of 10 extra points that can come from those status points. This could help a lot of people who have long records of small crimes like drug possession or low-level theft. Their criminal history score won’t go up as much just for committing crimes back-to-back, so their sentence range will be lower[3].

Part B – Two Level Decrease for Zero Point Offenders

Part B helps people who have zero actual criminal history points under the guidelines. Right now, you can still get sentenced as a “Criminal History Category I” even if you have zero points, and face longer sentences than someone with no record at all. Part B creates a new rule that if you have zero points and meet some other conditions, your sentence will be reduced by 2 offense levels. Those conditions are
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:

• You didn’t get any adjustments for hate crime motivation, vulnerable victim, aggravating role, or continuing criminal enterprise
• Your offense isn’t a crime of violence or other serious offense

This change will help a lot of low-level drug offenders and other non-violent offenders who have no actual criminal history avoid longer sentences just because of the category they’re put in.

How does retroactivity work?

Normally, when the sentencing commission changes the guidelines in a way that reduces sentences, they have to decide whether to apply it retroactively. That means people who are already in prison could get their sentences reduced. For Amendment 821, the commission voted to allow retroactive application, but on a delayed schedule
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. The changes won’t take effect for people already in prison until February 1, 2024.
This delay is to give the courts time to review cases and for the Bureau of Prisons to prepare for releasing prisoners. The commission estimates around 11,500 current federal inmates will be eligible for sentence reductions averaging 14 months when this goes into effect
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What are the pros and cons of Amendment 821?

Like any big policy change, there’s reasonable arguments on both sides here. Some of the key pros and cons are:

Potential Pros

• Could help reduce overcrowding in federal prisons
• Gives a second chance to low-level offenders serving long sentences
• Makes sentences more fair by limiting the impact of criminal history
• Incentivizes rehabilitation by valuing more recent behavior over past mistakes

Potential Cons

• Earlier release for some offenders could present public safety risks
• Reduces consequences for repeat offenders who continue to reoffend
• Could undermine deterrent effect of longer sentences for repeat offenders
• May be seen as “soft on crime” by some policymakers and public

There are good-faith arguments on both sides. Some see this amendment as an important reform to make sentences more just, reduce prison overcrowding, and allow second chances. Others argue it goes too far in reducing consequences for repeat offenders and could lead to more crime. Reasonable people can disagree on the proper policy balance here.

What’s next for Amendment 821?

Right now, Amendment 821 is in a congressional review period until November 1, 2023[2]. Barring Congress passing a law to stop or change it, the amendment will go into effect November 1 for any new sentences going forward. But the retroactive part applying to those already in prison won’t kick in until February 1, 2024. The courts and Bureau of Prisons need time to review all the eligible cases and get prepared for releasing prisoners
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This is a really significant change that could allow thousands of inmates to get released earlier than they were originally sentenced starting next February. It will be interesting to see if Congress takes any action on the amendment given these changes. But unless they do, Amendment 821 is set to have a major impact on federal sentencing in both new and already-decided cases.