Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity
A week from today, on November 1, 2023, the new US Sentencing Commission’s amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works). Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history. But there is far more going on with all these amendments than can be readily summarized in this forum. Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments. Specifically, from a USSC training event, here is a slideshow that summarizes the USSC’s amendment work, and a whole bunch of helpful “Amendment in Brief” documents assembled here provide primers on nine amendments.
As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead. And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines. Helpfully, the Commission has created this “Background Information” page to try to address some questions about retroactivity. But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application.
I predict questions and litigation in part based on an interesting little document that the USSC posted here titled “Comparison of Retroactive Guideline Amendments.” Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as “Group size” and “Eligible for reduction” under the new criminal history amendments. In short form, the document estimates that over 85,000 prisoners are in the “Group size” who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction. In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.
I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon. I recommend these highly: