Sentencing Commission Backs Retroactive Cuts For 1st Timers

By Stewart Bishop

On August 25, 2023

A divided U.S. Sentencing Commission has voted to retroactively apply changes to sentencing guidelines that will allow potentially thousands of defendants who were sentenced as first-time offenders to petition courts for a reduction in their prison terms. 

The criminal history guidelines reform from the commissioners — all of whom were appointed by President Joe Biden — was passed unanimously in April, and will create a provision that provides a two-level decrease to the overall offense level for defendants with no previous convictions, absent certain aggravating factors. It is to become effective Nov. 1. 

Whether it would apply to past crimes was up in the air until Thursday, however, when a closely divided commission voted 4-3 during a public meeting in favor of applying the new amendments retroactively, meaning that beginning in February 2024, thousands of eligible defendants, or the Bureau of Prisons, will be able to petition courts for sentencing reductions.

Commission chair Carlton Reeves, a U.S. district judge in the Southern District of Mississippi, said the commission’s latest guidelines changes are “data-driven, measured and sensible reforms,” based on an analysis of the most recent data on recidivism.

According to the commission, that data shows that offenders with zero criminal history points have much lower recidivism rates than other offenders. Judge Reeves said that based on the data and the research, the commission can no longer justify some portion of the criminal penalties for such defendants.

“What is unjustified in the future, was unjustified in the past, and must be rectified now,” Judge Reeves said.

Defendants who had no criminal history at the time of their sentencing will not be eligible for a reduction if their offense involved one of several aggravating factors, including terrorism, sex offenses, death, serious bodily injury, weapons, hate crimes and that the defendant “did not personally cause substantial financial hardship.”

Another part of the latest guidelines reform limits the impact to a defendant’s criminal history score of “status points” — added criminal history points imposed if an offense was committed while a defendant was on probation, parole or otherwise still subject to a criminal sentence. That revision may also be applied retroactively for a potential reduction in sentence.

The prospect of applying both changes retroactively drew fierce opposition from some commissioners, the Department of Justice and others, who criticized the burden retroactivity would place on the court system.

Commissioner Claria Horn Boom, a U.S. district judge for the Western and Eastern Districts of Kentucky, said the application of retroactivity by the commission is meant to be the exception.

“Except for the perspectives of incarcerated individuals and their counsel, every significant stakeholder in the criminal justice system came out against making either amendment retroactive,” Judge Boom said.

The opponents note that over 85,000 incarcerated individuals, more than half the total BOP population, either had status points applied in their guidelines calculation, or had no criminal history points.

The commission’s own impact analysis suggests that most of those defendants won’t be eligible for a sentencing reduction, and estimates that 7,272 individuals in the “zero-point offenders” category would qualify for a possible sentencing reduction of 17.6%, on average, while 11,495 of those prisoners with status points would be eligible for a possible average reduction of 11.7%.

The Justice Department contends that regardless of who is eligible for a reduced sentence, most zero-point offenders or those with status points are likely to move for a reduction anyway. In a letter to the commission filed in June, the DOJ said the commission has historically reserved retroactivity for amendments that try to correct “a systemic wrong,” as opposed to the amendments at issue, which it deemed to be “minor downward adjustments.”

The DOJ also said that despite the exclusions for defendants with aggravating factors, many serious offenders, especially white collar offenders will qualify for a potential sentencing reduction, “and will signal an inequitable benefit for such offenders.”

Commissioner John Gleeson, a Debevoise and Plimpton partner and former U.S. district judge for the Eastern District of New York, who backed the retroactive application of the amendments, took aim at opponents’ arguments that the amendments’ retroactive application won’t right a systemic wrong and will cause an undue administrative burden on the federal criminal justice system.

“In my view, it’s hard to overstate how wrong that argument is,” Judge Gleeson said.

He said the comments the commission received as part of the amendment process could not establish more clearly that Black and brown people in the U.S. have been arrested, convicted and imprisoned at “disproportionately high rates for decades, and not for justifiable reasons.”

“There’s no such thing as fully remedying a racial disparity that’s been baked into our criminal justice system for so long,” Judge Gleeson said. “But making these amendments retroactive will have a tangible effect on thousands of people of color.”

The commission on Thursday also voted on its priorities for the 2023-2024 amendment process, which include acquitted conduct sentencing, a holdover from last year that the Supreme Court took note of in denying review of cases brought by defendants challenging the controversial practice, with several justices saying they were holding off taking up the acquitted conduct issue to give the commission more time to act.

“The commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” Judge Reeves said.

This piece was republished from Law360.