The Legal Basis for Retroactive Application of Amendment 821

The Legal Basis for Retroactive Application of Amendment 821

The recent passage of Amendment 821 to the United States Sentencing Guidelines has raised a lot of questions about whether it can be applied retroactively to people already serving prison sentences. Retroactive application of new laws is always controversial, so let’s break down the legal issues.

What is Amendment 821?

Amendment 821 makes big changes to the way criminal histories are calculated under the Sentencing Guidelines. It limits the impact of things like old convictions and probation violations. It also changes how cooperation with prosecutors is rewarded. Overall, Amendment 821 will likely reduce prison sentences for many federal defendants.

The U.S. Sentencing Commission passed Amendment 821 on April 27, 2023. But they delayed its effective date until November 1, 2023. This was to give the courts time to prepare.

What does “retroactive application” mean?

When a law applies “retroactively,” it can change the legal consequences for things that already happened. For example, Amendment 821 could potentially reduce sentences for people who were already convicted under the old rules.

Retroactive application does not happen automatically, though. First, the Sentencing Commission has to explicitly allow retroactivity. Then each individual defendant has to petition the court for a reduced sentence under the new law.

Does the Constitution allow retroactive application of criminal laws?

Sometimes. The Ex Post Facto Clause prohibits retroactive application of criminal laws that disadvantage defendants. But retroactive changes that benefit defendants are allowed. For example, when the U.S. Supreme Court prohibited mandatory life sentences for juveniles in Miller v. Alabama, that decision applied retroactively.

Since Amendment 821 stands to reduce sentences for many people, its retroactive application does not violate the Ex Post Facto Clause. The benefits outweigh any disadvantages.

What has the Sentencing Commission said about retroactivity for Amendment 821?

On August 31, 2023, the Sentencing Commission voted to give Amendment 821 retroactive effect. They added it to the list of amendments in §1B1.10(d) of the Guidelines that apply retroactively.

But they also included a “Special Instruction” delaying retroactivity. It says courts cannot reduce sentences under Amendment 821 until its general effective date of February 1, 2024. This was probably to give the criminal justice system more time to prepare.

What legal factors did the Sentencing Commission consider with retroactivity?

In making retroactivity decisions, the Sentencing Commission has to balance things like fairness, administrability, and public safety. Amendment 821’s retroactivity raises the following issues:

• Fairness weighs strongly in favor of retroactivity. Amendment 821 will likely reduce sentences for thousands of people. Not applying it retroactively raises serious equal justice concerns.
• Administrability poses some challenges. Courts will have to recalculate sentences under the new rules. But the Commission found these burdens “manageable.”
• Public safety does not seem to be a major concern with this amendment. The Commission did not express any worries about retroactivity increasing crime rates.

Overall, the Commission decided retroactivity was appropriate for Amendment 821. The benefits to fairness outweighed the administrative burdens.

What about retroactivity for civil forfeiture cases under Amendment 821?

Some law enforcement groups have argued Amendment 821 should not apply retroactively to assets already seized through civil forfeiture. They say this would undermine investigations and police budgets.

However, civil retroactivity has fewer constitutional limits than criminal retroactivity. Courts balance factors like fair notice, reasonable reliance, and legislative purpose.

Here, fairness and legislative intent favor applying Amendment 821 to pending civil cases. The Sentencing Commission wanted to broadly reduce excessive punishments. Preventing retroactivity for civil forfeitures would undermine that goal.

Overall, the case for retroactivity of Amendment 821’s civil provisions seems strong. But expect legal challenges on this issue.

What should people do if they are eligible for retroactive relief under Amendment 821?

The first step is to calculate what your new guideline range would be under Amendment 821. This can be complicated, so consulting an attorney is highly recommended.

Once you determine you may qualify for a reduced sentence, you can file a motion asking the court to apply Amendment 821 retroactively in your case. Again, having a lawyer’s help is a very good idea.

Relief under Amendment 821 is not automatic. You have to take affirmative steps to request and justify the retroactive changes. The court also has discretion in whether to grant a reduced sentence.

Does Amendment 821 help with compassionate release motions?

Possibly. Amendment 821’s changes to criminal history scoring may help certain inmates qualify for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Things like outdated convictions won’t count as much anymore.

However, compassionate release has different legal standards than retroactive guideline reductions. The issues can get complex. If you already have a motion pending, talk to your lawyer about whether Amendment 821 could help your case.

Conclusion

Retroactive application of new criminal laws always involves difficult legal and policy issues. But Amendment 821’s sentencing changes seem appropriate for retroactivity, given their breadth and purpose. Still, implementing retroactivity will require care and discretion from courts, prosecutors, and defense lawyers alike. Each case raises unique facts and equities for all sides to consider.