On May 1, the Sentencing Commission sent Congress a set of proposed amendments to the federal sentencing guidelines that will go into effect on November 1. Proposed amendment 5 would change the way criminal history is calculated. It would eliminate the guideline rule about recency. That rule adds one to two criminal history points if the crime for which the person is being sentenced was committed less than two years after release from prison. Eliminating the recency rule will lower sentences in some, but not all circumstances.
The changes to the recency rule do not change or eliminate any mandatory minimum sentences.
Because the amendment may lower sentences in some circumstances, the Commission is considering making that rule retroactive. If the Commission decides to make the amendment retroactive, people who are currently in prison and whose sentences were increased due to the recency rule can petition the sentencing court to reduce their sentence to what it would be had the recency rule never been in place.
In 2009, 71,054 people received a federal sentence. Of them, 14,548 or 27.2 percent received additional criminal history points due to recency. Some, but not all of those prisoners will benefit if the rule is made retroactive. Subtracting one or two criminal history points will not change the criminal history category (which is what increases sentences) in all cases.
Criminal history points add up. They are collected into criminal history categories. These categories may include more than two criminal history points so that reducing criminal history points by one or two retroactively will not always change the criminal history category the defendant falls into an d thus not lower the sentence.
FAMM supports the proposal to make this amendment retroactive and will tell the Commission so in the public comment period.
Click here to download the U.S. Sentencing Commission's call for public comment.