Dear FAMMily,

The United States Sentencing Commission has requested comment on the criteria used to decide whether, and under what circumstances, changes to the guidelines should be made retroactive. What does this mean?

Currently, when the Commission lowers a guideline, the lower sentence only applies prospectively (to people who have not yet been sentenced). But the Commission can vote to make ameliorative amendments (ones that would lower guideline ranges) retroactive – so that people who have already been sentenced can ask the sentencing court for a reduced sentence if they believe that their sentencing range would be lower today.

The Commission uses a set of considerations in USSG §1B1.10 when considering whether to make a newly lowered sentence retroactive. These considerations include, “the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range.” Since 1989, this retroactivity process has been unchanged. But the Commission is wondering whether it should make any changes to this process.

Specifically, the Commission seeks your comments and insight on:

Whether it should provide more guidance on how the existing criteria are applied, and if so, what additional guidance would be helpful?
Should the criteria be changed – any additions or modifications to the existing criteria in §USSG 1B1.10?
Should the Commission adopt any bright line rules regarding retroactivity? For example, a bright line rule could require that the impact of the retroactive change should always be given more weight than the difficulty of applying the change retroactively.
Whether it should keep the following sentence from the Rules of Practice and Procedure – “[g]enerally, promulgated amendments will be given prospective application only.”

Please note that this is not a request for comment on a proposed amendment. This is a request that you comment on the procedures the Commission follows. It is a way for the Commission to get stakeholder input on important issues regarding retroactivity. You can read it here.

As always, your input is very important.

We have prepared a draft comment for you below. We urge you to include your personal stories about the importance of retroactivity, if you have any. Comments are due April 18 to the Commission. You can submit your comments by visiting this link and clicking “submission portal.”

Dear Judge Reeves,

When changes are made to the sentencing guidelines that could shorten someone’s sentence, I believe it is imperative that the Commission make those changes available to people who have already been sentenced. Not doing so undermines confidence in the criminal justice system.

Imagine if you successfully advocated lowering guideline ranges and were told that your advocacy was important to the new lower sentence. Only to then be told that change would not apply to your loved one who is serving time in prison, simply because their sentence was imposed before the ameliorative amendment. You’d be left shaking your head at the injustice.

I think that the existing criteria fairly captures the circumstances that should be considered when deciding whether to make a change retroactive. I would suggest, however, that changing “magnitude” to “impact” would help provide some clarity. Magnitude is captured by impact, and I think understanding the impact of making an amendment retroactive more accurately gets at what the Commission is seeking to assess. I also believe that the sentence in the Rules of Practice and Procedure should be updated to read, “[g]enerally promulgated amendments should be given prospective application only, unless they meet the criteria set forth in USSG §1B1.10.

Retroactivity is a critical aspect of ensuring fairness in federal sentencing.

Thank you for considering my views.