What’s the Timeline for Retroactive Application of Amendment 821?

Amendment 821 to the U.S. Sentencing Guidelines is a big deal for many federal inmates, with major implications for the criminal justice system. But when will prisoners actually see any benefits from the retroactive application of this amendment? Let’s break it down.

What Does Amendment 821 Do?

In simple terms, Amendment 821 changes how criminal history points are calculated under the Sentencing Guidelines^[2]. Specifically, it creates a new provision that allows a 2-level decrease in the offense level for defendants who received zero criminal history points, and whose crime did not involve certain aggravating factors like violence, firearms, terrorism, etc.

This change will help many inmates who received lengthy sentences under the old guidelines, even though they had little or no prior criminal record. Allowing Amendment 821 to apply retroactively gives these prisoners a chance to get their sentences reduced.

The Retroactivity Timeline

Here is the timeline for how Amendment 821 retroactivity will roll out:

• April 27, 2023 – Amendment 821 is submitted to Congress
• August 24, 2023 – Sentencing Commission votes to allow retroactivity
• November 1, 2023 – Amendment 821 goes into effect for new sentences imposed on or after this date
• November 1, 2023 – Eligible inmates can start filing motions for reduced sentences under Amendment 821 retroactivity
• February 1, 2024 – The earliest date that courts can order inmates released based on retroactive application of Amendment 821

So in summary, eligible prisoners will be able to start applying for sentence reductions beginning November 1, 2023. But no one will actually be released early until February 1, 2024 at the earliest^[1].

Who Is Eligible?

The Sentencing Commission estimates that around 2,700 federal inmates will be eligible for sentence reductions under Amendment 821 retroactivity^[2]. However, eligibility is limited to those who meet specific criteria:

• Received zero criminal history points under the guidelines
• Offense did not involve violence, firearms, terrorism, etc.
• Received a sentence under the pre-Amendment 821 guidelines

Prisoners will have to file a motion in federal court proving they meet these eligibility requirements. Even then, whether to grant a reduction is up to the discretion of the judge.

How Much Time Will Be Reduced?

The amount of sentence reduction will vary case-by-case. Amendment 821 allows up to a 2-level decrease in the offense level used to calculate the guidelines range. For some inmates, this could result in years being shaved off their sentence. For others, the reduction may be more modest.

Judges have discretion in deciding how much of a decrease is appropriate. They are supposed to consider factors like the inmate’s disciplinary record in prison when deciding on the reduction amount.

What Should Inmates Do Now?

Prisoners who think they may be eligible under Amendment 821 retroactivity should start gathering documents and evidence now to show they qualify. This includes:

• Their pre-sentence investigation report
• Judgment and commitment order
• Disciplinary records from BOP
• Proof of rehabilitation efforts and accomplishments

Consulting with an attorney who specializes in post-conviction relief is highly recommended. A lawyer can review the case and help determine eligibility, as well as guide the process of filing a motion and representing the client in court.

What Are the Pros and Cons?

Allowing Amendment 821 to apply retroactively has several potential pros and cons:

Pros

• Gives relief to inmates over-sentenced under old guidelines
• Reduces overcrowding in federal prisons
• Saves taxpayer dollars on unnecessary incarceration
• Encourages rehabilitation by providing incentive for good behavior

Cons

• Retroactivity increases workload for federal courts and prosecutors
• Some dangerous offenders could be released early
• Victims may feel cheated by sentence reductions
• Public safety could be impacted depending on who is released

On balance, most criminal justice reform advocates argue the pros outweigh the cons. But reasonable minds can disagree on whether retroactivity is the right policy.

What’s Next?

Assuming Congress does not act to block or modify Amendment 821, the first inmates could be released starting February 1, 2024. We will likely see a steady flow of motions and orders over the next year as prisoners seek to take advantage of this change. It will be interesting to see how broadly courts apply the retroactivity and who ultimately benefits.

The implementation of Amendment 821 retroactivity will be a key development to watch in the ongoing evolution of federal sentencing. While not a panacea, it does represent a modest but meaningful step toward a more just and rational approach to punishment.