Who is Eligible for a Retroactive Sentence Reduction Under Amendment 821?

On August 24, 2023, the U.S. Sentencing Commission voted 4-3 to allow retroactive application of Amendment 821, which makes changes to how criminal history is calculated in federal sentencing guidelines. This means some people already serving prison sentences may now be eligible for lower sentences starting February 1, 2024.

But meeting the requirements doesn’t automatically guarantee someone will get a reduced sentence. It just means they can ask the judge to re-open their case and consider it. Whether their sentence actually gets lowered will still be up to the judge’s discretion.

What Does Amendment 821 Change?

Amendment 821 creates a new provision, §4C1.1, that allows a two-level decrease in the offense level for certain “zero-point offenders” – defendants who didn’t receive any criminal history points under Chapter Four, Part A of the guidelines. It’s meant to address over-punishment of first-time offenders or those with very minor records.

This two-level reduction can apply if:

• The defendant receives the Zero-Point Offender Adjustment, and
• The guideline range overstates the seriousness of the offense because it’s not a crime of violence or otherwise serious offense.

The Commission estimates around 11,500 people could be eligible for reductions based on this part of Amendment 821.

Who Can Get a Retroactive Reduction?

To qualify for a retroactive sentence reduction under Amendment 821, someone has to meet all of these requirements:

• They were sentenced before November 1, 2023 when the amendment took effect.
• Applying the new criminal history rules lowers their guideline range. If the range stays the same, no reduction.
• They don’t have a record of violent offenses and aren’t classified as a career offender or armed career criminal.
• They aren’t otherwise excluded from retroactivity by the policy statement.

The Commission estimates around 7,300 people could get reductions under the retroactive part of Amendment 821.

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What About People Already Released?

Unfortunately, the retroactive reduction only applies to people still serving their federal sentence. Anyone already released from custody won’t be eligible.

But some good news – people on supervised release may be able to get their supervision terms reduced if they get a lower guideline range. The judge can modify the conditions of supervision under 18 U.S.C. § 3583(e)(2).

How Does the Retroactive Process Work?

For eligible inmates, here are the steps in the process:

1. The probation office prepares a memorandum about the retroactive amendment and whether it lowers their guideline range.
2. The judge reviews the memo and makes a preliminary determination if the inmate appears eligible.
3. If so, a hearing gets scheduled where the judge can decide on a new reduced sentence.
4. If the judge does lower the sentence, they enter an order reducing the term of imprisonment under 18 U.S.C. § 3582(c)(2).

There are no guarantees though. Even if eligible, the judge has discretion whether to actually reduce the sentence or not.

What Factors Do Judges Consider?

When deciding on retroactive reductions, the judge will consider things like:

• Public safety – Does this person still pose a danger to the community?
• Post-sentencing conduct – How have they behaved in prison? Have they taken rehabilitation programs?
• Original sentencing factors – What motivated the original sentence? Would a reduction conflict with that?

If the judge believes a reduction creates unwarranted disparities or public safety risks, they may deny it despite eligibility.

How Much Could Sentences Be Reduced?

The Commission estimates the average reduction is likely to be around 17.6% for the retroactive part of Amendment 821. But it depends on each person’s individual case facts and criminal history.

For those who do get reductions, the judge can’t reduce the sentence below the new lower guideline range. However, they may be able to reduce supervised release terms as well.

What Are the Expected Benefits?

Supporters of making Amendment 821 retroactive point to several expected benefits:

• It will help rectify excessive punishments for minor first-time offenders.
• Earlier releases can facilitate better reentry outcomes.
• It reduces prison overcrowding and saves taxpayer money.
• Retroactivity promotes fairness by creating more uniformity in sentences.

Supreme Court Justice Sonia Sotomayor has previously said the Commission has a duty to make sentencing changes retroactive when appropriate. This move brings federal sentencing more in line with reform efforts.

What Are the Potential Drawbacks?

There are also some risks and critiques to weigh:

• Earlier releases could present public safety issues if people re-offend.
• Victims may feel re-traumatized seeing sentences reduced.
• Retroactivity could create confusion and disparities compared to past sentences.
• The costs of litigation and court resources may be overly burdensome.

Opponents argue judges handed down fair sentences already based on the facts of each case. Re-opening cases erodes respect for the law.

Key Takeaways

• Around 7,300 inmates may be eligible for lower sentences beginning in February 2024.
• Eligibility is limited to non-violent offenders with no or minor criminal history.
• Judges still have discretion whether to reduce sentences for those eligible.
• Average reductions are estimated around 17.6% but vary case-by-case.
• Earlier releases facilitate reentry but may raise public safety concerns.

On balance, making Amendment 821 retroactive will likely do more good than harm. But it’s not without controversy. The federal courts will soon be busy processing many applications for reduced sentences under the new rules.