We previously reported that the United States Sentencing Commission voted to amend the guidelines. However, the guideline amendments will only affect those who have not been sentenced. In August, the Sentencing Commission voted not to retroactively apply the upcoming amendments.
The Commission: What they are and what they do
The United States Sentencing Commission is a cornerstone of the federal criminal justice system, tasked with promoting fairness and consistency in sentencing across the nation. Established by the Sentencing Reform Act of 1984, the USSC operates as an independent agency within the judicial branch, striving to reduce unwarranted disparities while maintaining proportionality in federal sentences.
Each Year the Commission considers changes to the guidelines in the form of amendments. These amendments can either work to ultimately reduce the sentences of those charged with crimes, or in certain situations, make it easier for their sentences to be increased. Notable amendments from the past include the changes to the compassionate release guidelines or the “drugs minus two” amendment in the 2010’s.
The Sentencing Commission follows a familiar amendment cycle where they begin in June with priorities that they want to consider in the next cycle, they work with stakeholders and do research, they publish proposed amendments and then vote on those amendments.
Retroactivity: What it is and what it means
After voting on amendments the Sentencing Commission can decide if the amendments will apply retroactively, meaning whether current inmates will be able to use them to reduce their sentence. Like the normal amendment cycle, this process starts with discussions, contains public meetings and ends with a vote. But the difference is that the commission considers these in a few months as opposed to the better part of the year.
Only Guidelines that are deemed retroactive can be used by inmates to reduce their sentences, making this vote crucial for the tens of thousands of inmates.
This Year’s Proposed Retroactive Amendments
This year the sentencing commission considered two prospective amendments for retroactivity: Amendment 832 and Subpart 2 of Part A of Amendment 833.
Amendment 832 was designed to resolve two circuit conflicts regarding things such as “physically restrained” and “intervening arrest.” See our previous information on intervening arrest.
Amendment 833, Part A, Subpart 2 relates to the mitigating role adjustment, expanding the circumstances where that adjustment is generally warranted, and providing courts with a list of examples to guide them.
Amendment 833, Part A, Subpart 1 amended the mitigating role cap, meaning that it refined the offense level caps applicable to certain high-quantity drug traffickers found to have played a mitigating role in the context of their offenses.
As indicated, these amendments had previously been approved; this hearing was solely whether the already approved amendments would be retroactive.
Retroactivity Analysis, Discussion and Vote.
Amendment 832 (intervening arrest) and 833 Part A (mitigating role adjustment): No vote taken
The first item discussed was a possible vote regarding the retroactive application of Amendment 832 (which resolved two circuit conflicts) and Subpart 2 of Part A of Amendment 833 (which addressed drug offenses).
Although a motion to promulgate [consider] was deemed appropriate, no commissioner made a motion to proceed with the retroactivity of these amendments and no vote was ultimately taken.
Amendment 832 Part B: (mitigating role cap): Failed to Pass
The commissioners discussed their analysis as to retroactivity, indicating that this change would result in an average reduction of 12 months in sentencing for eligible individuals.
Some Commissioners were in favor of retroactivity of these amendments. Chair Reeves, Vice Chair Mate, and Vice Chair Restrepo spoke in favor of making the mitigating role cap retroactive. They argued that the amendment (which concerned refining the offense level caps for certain high-quantity drug traffickers found to have played a mitigating role) promoted fairness, achieved uniformity, and that eligible defendants were serving sentences the commission “no longer considers proportionate.
However, other commissioners were opposed. Commissioner Wong and Vice Chair Murray announced they would be voting against retroactive application. They emphasized the presumption against retroactivity under the commission’s rules, noted that the amendment was a “refinement” rather than a fundamental change or redress of fundamental injustice, and cited the opposition from stakeholders including the Criminal Law Committee of the U.S. Judicial Conference, the probation officers advisory group, the victim’s advisory group, and the US Department of Justice.
Ultimately, the motion failed. The record reflects that fewer than four commissioners voted in favor of the motion. (A majority of the commission’s members—at least four votes—is generally required for a motion to pass.).
The impact of the failure of these votes
The failure of these votes to pass means that these amendments cannot be used by persons who are already in jail. A person who is awaiting sentencing or trial may be able to use these cases if they are applicable however. And further, an inmate who receives a resentencing due to being successful on § 2255 may be able to use these on their resentencing.
The failure of these amendments to be applied retroactively also means that they cannot be used in the change of law provision of the reduction in sentence protocols either. This is disappointing and we will continue to monitor these amendments and the amendments that are coming up in the future election cycle.
The video of the commission voting on these amendments can be seen below.
