Beginning this month (November 2023), the Sentencing Commission’s recommendation to modify the Sentencing Guidelines goes into effect. Known as Amendment 821, it is part of a larger movement to lower the prison time for people who do not have a significant criminal history before being convicted of the current situation. The amendment applies three different ways. How? Keep reading, and I will explain it.

Good, you’re still here. I promise, like the rest of this blog, I’ll be quick and to the point and avoid using legalese to try to make myself look smarter than I is (sic).

Part A of the amendment addresses ‘status points.’ What is a status point? Until this amendment, I knew what they were, but I did not know they had a name. If the amendment does nothing else, it codified the name of the extra points someone gets if they were on probation or parole at the time the new offense occurred. This issue relates to criminal history and has no impact on offense level (see my blog on Sentencing Guidelines to explain the difference). Before this amendment, if someone ‘picked up’ a new federal case and, at the time they purportedly committed the conduct, they were on probation or parole, their criminal history score (the part of the chart that runs horizontally) would increase by up to two points. Part A of AMENDMENT 821 no longer requires those points in some instances and lessens them in others. If, before adding the ‘status points,’ the person has six or fewer criminal history points then the status points do not get added at all. If the person has seven or more criminal history points, now only one additional point is added. The rationale? The sentencing commission determined that, while criminal history is strongly tied to the likelihood of future recidivism (committing more crimes), status points only minimally improved the value of someone’s criminal history score. That is, if someone’s criminal history score was high, that itself would be a strong indicator that the person may commit new offenses. However, if their criminal history score was artificially increased with status points, the overall score was not helpful in predicting who would be a recidivist. Makes sense and probably didn’t require all the studies that were done to arrive at this conclusion.

Part B gets a bit more detailed. Essentially, it creates a new 4C1.1 guideline that can decrease OFFENSE LEVELS by two for ‘zero point offenders.’ That’s right, by looking at someone’s criminal history, the offense level itself (the vertical part of the table) can improve by two points. So, asking for a friend, do you qualify for a reduction? If you (um, your friend) had no criminal history points under Chapter Four, Part A (this is what is meant by ‘zero point offenders’), then the offense level is decreased by two. However (and there is always a(n) however in criminal law), certain ‘aggravating’ factors must not apply in order to receive the benefit of this change. Overall, we must review a total of ten factors to determine if the person gets the benefit of this change. The person must not have had any criminal history points, they must not have had any adjustment under 3A1.4 (terrorism), the instant offense did not use violence or credible threats of violence, the instant offense did not result in someone’s death or serious bodily injury, the current offense is not a sex crime, the defendant in the current case did not personally create a substantial financial hardship for a victim (I know, weird one and really hard to understand), the defendant must not have possessed, received, purchased, transported, transferred or have sold a dangerous weapon, the instant offense must not be listed in 2H1.1 (offenses involving individual rights), the instant conviction did not receive an adjustment under 3A1.1 or 3A1.5 (hate crime or vulnerable victim and human rights offenses respectively), finally, the defendant must not have received an enhancement under 3B1.1 (aggravating role) and the matter must not have involved a continuing criminal enterprise (see 21 U.S.C. Section 848). Whew…that’s a lot of buts in all of this. Objectively, it looks like the point of this change is to lower the amount or likelihood of prison time for someone who has no history and fell backward into a federal conspiracy case; a good idea, but it only will help a small group of people.

Part C is less complicated. As so many states have and will make marijuana legal, the sentencing commission has decided that judges should not consider marijuana convictions as significant priors when determining a sentence. Some districts, even before this amendment, were not counting marijuana possession charges anymore, particularly in jurisdictions where marijuana was legal at the state level. Since marijuana continues to be illegal under federal law (and insanely highly classified), the prior marijuana convictions still will appear on a presentence investigation report (PSR), but Part C amends the language of 4A1.3 by suggesting that a downward departure may be warranted based on criminal history that is predicated on marijuana charges.

The best part of Amendment 821 is that it is to be applied retroactively. That means, provided someone is still in prison (it does nothing at all if you are already released), they can have their sentence lessened to account for the changes that were made. So, should everyone in prison hire a lawyer to get this benefit? No, probably not.

Most jurisdictions, including the Eastern District of Missouri (St. Louis), are having the probation office review the case of everyone still incarcerated on charges that originated in their particular jurisdiction. The probation office produces a report in each possible case and, in many jurisdictions, Criminal Justice Act (CJA) attorneys and Federal Defenders are being appointed to advocate for each person who may qualify for the change.

All of this said, there is a significant amount of discretion for the sentencing judge. While they are able to take the new changes into consideration when resentencing (yes, that’s a word (I think)) someone, they can always find that other factors weigh in favor of not changing the sentence. It is critical that anyone hoping to get the benefit of these changes does not have any or many conduct violations in prison. Yep, judges are looking at post-sentencing behavior to determine if a reduction is proper. Thus, anyone who hopes to get the benefit of the change should work with either the lawyer they hire to represent them on a resentencing (it keeps saying that’s spelled wrong but if I admit that then a LOT of briefs I’ve written are wrong as well…I’m keeping it) or the lawyer appointed to handle the matter. Assuming conduct while in the Bureau of Prisons (BOP – yeah, no one put much time into naming this…kind of pathetic) is good, the defendant/offender (pick a term) should work with their caseworker in the prison to get proof of their conduct as well as verification of any classes they have taken including drug treatment and forward it to the attorney. While negative conduct can have a negative impact, positive conduct specifically can have a significant impact. Pepper v. United States, 562 U.S. 476 (2011), explained that post-sentencing rehabilitation must be taken into consideration by the sentencing judge. This case from Iowa (yes, that Iowa – if you build it he will come…) has been helpful since its inception in 2011, but now it truly can make a huge impact since so many cases are going to be reviewed for re-sentencing (it seems to be happier if I add the hyphen…anyone who plays Scrabble, let me know if resentencing is a word or if you need the ‘-‘ and does that add points to your score).

In short, if you (ahem, someone you know) did not have much criminal history, was not involved in ‘big time’ drug dealing conspiracies where they directed others, did not run afoul of the RICO statute or ones relating to terrorism or human rights, Amendment 821 may help lower your (their) sentence. If the jurisdiction where the conviction occurred is appointing lawyers to review every case, it would still be helpful to get verification of everything that was done while in BOP, including positive behavior and drug classes, etc.

Without question the sentencing commission appears to be heading in a good direction. Change doesn’t happen quickly, but it does happen. If anyone reading this is frustrated because the changes appear ‘soft’ on crime consider this: we are the only free (democratic) society that incarcerates as high a proportion of our people as we do. Put more simply, no other ‘free’ country incarcerates such a high percentage of their population. Heck, many societies that do not claim to be free still don’t incarcerate as many people per capita. The change in this law is not soft on crime. Instead, these were enhancements that were put into place years ago (yes, some by democrats – it’s not a political issue in that sense) without much (or any) study as a way of showing our government was tough on crime. After reviewing how these changes impacted our society and if they reduced crime in any meaningful way, it was discovered that none of this worked as intended. Accordingly, we aren’t getting ‘soft’ on crime; we are getting rid of arcane, foolish rules that did nothing to solve the crime problem. Yes, definitely baby steps, but baby steps in the right direction at least!