Yesterday, the United States Sentencing Commission (USSC), in a 4-to-3 vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history—meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text). Amendment 821 creates a new Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) providing a decrease of two levels from the offense level determined under Chapters Two and Three for defendants who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors. In short, for many white collar crimes and lower-level drug offenses, it could mean months or years off of a sentence.
Those groups of offender who will NOT receive a benefit from this amendment include:
(1) had no adjustment under § 3A1.4 (Terrorism);
(2) did not use violence or credible threats of violence in connection with the offense;
(3) the offense did not result in death or serious bodily injury;
(4) the offense is not a sex offense;
(5) the defendant did not personally cause substantial financial hardship;
(6) no gun was involved in connection with the offense;
(7) the offense did not involve individual rights under § 2H1.1;
(8) had no adjustment under § 3A1.1 for a hate crime or vulnerable victim or § 3A1.5 for a serious human rights offense; and
(9) had no adjustment under § 3B1.1 for role in the offense and was not engaged in a 21 USC § 848 continuing criminal enterprise
Since having a quorum of commissioners earlier this year, the first time since 2018, the USSC voted on amendments to the federal sentencing guidelines—including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules. Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals. Citing the number of inmates who could benefit from this, many prosecutors and judges pushed back during the comment period to state it would be a tremendous burden to the justice system to try to go through all of the cases.
U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families. We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”
The USSC estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:
- 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
- 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.
Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals. Applying these changes retroactively will increase fairness in sentencing. At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”
This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023. It is likely that Congress will not act to overrule on these amendments and, once passed, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later. The release of prisoners under these amendments will save the Bureau of Prisons hundreds of millions in the coming years.
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