Federal Sentencing Commission Advances
Meaningful Criminal Justice Reforms

On November 1, 2023, critical changes to the Federal Sentencing Guidelines went into effect after having been adopted by the United States Sentencing Commission this past spring. FWD.us is proud to have supported a number of the amendments, which are poised to reduce racial disparities in sentencing, impact tens of thousands of people serving time in the Bureau of Prisons, and safely reduce the number of people in federal prisons—a goal shared by Republicans and Democrats alike.¹ These reforms are long overdue and represent an important step forward in reigning in a federal prison population that is the largest in the country, despite mounting evidence that long prison terms do not reduce crime and that incarceration is the most expensive and one of the least effective methods of keeping communities safe.

In May 2022, President Biden nominated a slate of seven Commissioners for the United States Sentencing Commission. The nominations were remarkable not only because they included Judge Carlton Reeves, who would become the Commission’s first Black chairperson, but also because the Commission had been operating without a quorum since 2019 and had been unable to pursue its mission of updating the Guidelines and promulgating data-driven sentencing guidance for the federal judiciary. The Senate confirmed the bipartisan slate soon after, and this past spring the Commission adopted the first set of amendments to the Guidelines since regaining a quorum.

Among the recently adopted amendments are two evidence-based and urgently-needed changes that will help curb long federal prison sentences and bring people home to their families. The first provides guidance to judges deciding “compassionate release” motions under the First Step Act), passed in 2018. The Commission also adopted a pair of amendments—the “Criminal History Amendments”—that will reduce the recommended sentences for people with minimal or no previous criminal convictions and for people who were on probation or parole at the time of their offense. The Commission decided in August to make the Criminal History Amendments retroactive, making these sentence reductions available to thousands of people currently incarcerated in federal prisons. This is an especially important win in light of significant increases in the federal prison population in 2021 and 2022 that have come despite evidence that reductions in crime and reductions in incarceration can go hand in hand.

These reforms build on the successful release of thousands of people from federal prison to home confinement during the pandemic under the CARES Act.² The CARES Act releases were studied by Senator Cory Booker, and his recent report finds that of the over 13,000 people released as part of the CARES Act Home Confinement Program, only 22 were rearrested for a new crime, mostly drug-related. While home confinement is not the answer to the country’s incarceration crisis, the program does show the need to rethink our reliance on prisons as our principal public safety policy tool. Together, these reforms also demonstrate that, even in the midst of a polarized and highly politicized public conversation about public safety, there are still concrete pathways to advance impactful criminal justice reforms.

1. The Compassionate Release Amendment Will Help Decrease Incarceration, Reduce Racial Disparities, and Advance Public Safety

Prior to the First Step Act, compassionate release motions could only be filed by the Bureau of Prisons.³ Under the First Step Act, however, courts are allowed to consider compassionate release requests filed directly by people serving federal sentences. The law allows courts to reduce an incarcerated person’s sentence if an “extraordinary and compelling reason” warrants a reduction and the reduction is consistent with the Commission’s policy statements. The Commission’s newly adopted compassionate release amendment provides judges with the guidance they have been lacking since the First Step Act was passed in 2018.

Most notably, this guidance allows judges deciding compassionate release motions to consider whether 1) a person is serving an “unusually long sentence,” 2) they have served at least 10 years of that sentence, and 3) “an intervening change in the law has produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.” If the person meets these criteria, a judge may, but is not required to, grant a reduction in sentence, but only after fully considering the person’s individualized circumstances.⁴ This will permit judges to consider whether a subsequent change in the law creates a “gross disparity” between the imposed sentence and the current allowable sentence. It not only promotes fairness and equity—as Senators Durbin, Booker, and Hirono noted in their support of the amendment—but it will help reduce racial disparities in federal sentencing and allow people to safely return to their communities. It also moves federal sentencing policy more into alignment with the large body of research addressing the harms of long prison terms to individuals, families, and communities, and the failure of long prison terms as public safety tools.

2. Retroactive Application of the Criminal History Amendments Brings People Home with No Negative Impact on Public Safety

The Commission also adopted two changes to the way criminal history points are calculated under the Guidelines: 1) eliminating “status points” for people with fewer than seven criminal history points (the “Status Points Amendment”), and 2) providing a two-point offense level reduction for people with zero criminal history points (the “Zero-Point Amendment”⁵). The changes reflect the Commission’s recognition that the previous method of calculating a person’s Guidelines range did not further its mission of “implementing data-driven sentencing policies” and could not be justified on public safety grounds. Specifically, the Commission determined that status points “add little to the overall predictive value associated with the criminal history score” and that people assessed zero criminal history points have far lower rates of recidivism than even people with a single criminal history point.⁶

In line with FWD.us’ public comments and the success of former retroactive sentencing changes at the federal level, the Commission also decided to make the Criminal History Amendments retroactive beginning in early 2024. According to the Commission:

• The Status Points Amendment will likely impact 11,495 people currently serving sentences impacted by status points, 43% of whom are Black and 28% Hispanic, with an average sentence reduction of 14 months; and
• The Zero Points Amendment will likely impact 7,272 people, 10% of whom are Black and 70% are Hispanic, with an average sentence reduction of 15 months.

The decision follows in the footsteps of several other successful retroactive sentence reductions, including the Drugs Minus Two Amendment, the Crack Minus Two Amendment, and the FSA Guideline Amendment. Studies of these prior reforms have shown recidivism rates for people released early were the same or lower than for those released after serving their full original sentences. These sentence reductions will have a profound impact on thousands of families that have been advocating for their loved ones to come home for years.