Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?
Earlier this week, the U.S. Sentencing Commission held a public hearing to receive testimony from invited witnesses on whether to apply retroactively guideline amendments promulgated in April related to acquitted conduct, firearms, and drug offenses. The Sentencing Reform Act gives the Commission the responsibility, when it reduces the term of imprisonment recommended in the guideline applicable to a particular offense or category of offenses, to “specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u). In other words, the Commission must decide whether to apply guidelines that reduce imprisonment terms retroactively.
Since 1989, the Commission has indicated that “[a]mong the factors” it considers in making retroactivity decisions are “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.” These are the criteria the Commission has publicly identified – in the Background Commentary to §1B1.10 of the Guidelines – for its retroactivity decisions.
These factors must have seemed quite sensible to the Commission when it first added them to the Guidelines Manual, for they are not unlike the standards the U.S. Supreme Court set forth in Linkletter v. Walker, 381 U.S. 618, 622-24 (1965) and Stovall v. Denno, 388 U.S. 293, 297 (1967) for determining retroactivity of new rules of criminal procedure. In Linkletter, the Court faced the question of whether Mapp v. Ohio, which made the exclusionary rule for illegal searches and seizures applicable to the States, should be applied retroactively to cases on collateral review. The Court determined that retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. 381 U.S. at 636-640. The Commission’s retroactivity factors are echoes of the Court’s in that era.
But the Linkletter standard was quickly and roundly criticized, both in the academy and in the Supreme Court itself, for being overly opaque and for not leading to consistent outcomes. Justice Harlan repeatedly criticized the standard in various concurring and dissenting opinions. See, e.g., Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring in part and dissenting in part); Desist v. United States, 394 U.S. 244, 256 (1969) (Harlan, J., dissenting). The standard led to a hodgepodge of disparate treatment. Before too long, the Supreme Court changed course.
In Griffith v. Kentucky, 479 U.S. 314 (1987), the Court rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced and adopted the first part of the retroactivity approach advocated by Justice Harlan. Later, in Teague v. Lane, 489 U.S. 288 (1989), the Court held that new rules should receive very limited retroactivity in cases on collateral review. In those instances, the Court held, a new rule applies retroactively only if (1) the rule is substantive and not procedural or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.
Whether you agree or disagree with the Court’s decisions in Linkletter, Griffith, and Teague, the Supreme Court should be commended for having directly wrestled with – in its written and reasoned opinions – how and why new rules should be applied retroactively. It laid out the factors, certainly, just as the Commission has. But then, the Court grappled openly with how to apply them. For example, in its inquiry into how the purpose of a new rule plays into the retroactivity decision, the Court weighed whether and to what degree the new rule was an effort to ensure “the fairness of the trial – the very integrity of the fact-finding process.” Linkletter, 381 U.S. at 628 n.13, 639 & n.20 (1965).
The Court also continued to openly wrestle with how the interests of finality are to be weighed in determining whether a new rule should be applied retroactively and when those interests are outweighed by, for example, a new “substantive” or “watershed procedural” rule. For example, in Montgomery v. Louisiana, Justice Kennedy reasoned for the Court that “[a] conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void. [Citations omitted.] It follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” 577 U.S. 190, 203 (2016). And in Edwards v. Vannoy, Justice Kavanaugh, writing for the Court, concluded that decades of experiences applying the Teague standard must lead to the conclusion that “no new rules of criminal procedure can satisfy the watershed exception.” 593 U.S. 255, 271 (2021).
The Commission has not done similar work explaining how the factors it considers in deciding retroactivity are measured and assessed against one another – and against other factors – in particular circumstances and how they lead to a set of “general principles” of retroactivity that can be applied to future circumstances. While individual commissioners have made statements at public hearings of their reasons for supporting or opposing retroactivity for individual amendments, the Commission as a body has never explained it’s approach to retroactivity beyond the bland and unhelpful statement in the Background Commentary to §1B1.10 that “[t]he listing of an amendment in subsection (d) reflects policy determinations by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound discretion of the court, a reduction in the term of imprisonment may be appropriate for previously sentenced, qualified defendants.” Doesn’t the reduction of a guideline range always reflect a policy determination by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing?
The lack of explanation has led to what looks – to me anyway – like a rather silly notice and comment exercise each time the Commission considers a new amendment for possible retroactivity. The Commission publishes an issue for comment, seeking input into the retroactivity decision, and the stakeholders interpret the three factors listed in §1B1.10 in diametrically opposite ways. This is not surprising, as the listed factors can reasonably point in any direction. If the “magnitude of the change in the guideline range made by the amendment” is small, advocates for retroactivity can argue that the disruption to the system will likewise be small. If the magnitude is large, they can argue that the cost savings to the Bureau of Prisons will likewise be large, and that justice demands action in light of the enormity of the impact. Either way – small or large – the magnitude factor points both ways.
So, for the amendments passed in April, where the Federal Defender Sentencing Guidelines Committee can reasonably conclude that “[t]hese factors favor retroactivity for each amendment”, Letter from Heather Williams, Chair Federal Defender Sentencing Guidelines Committee to the Honorable Carleton W. Reeves, June 21, 2024, the Department of Justice can reasonably come to the exact opposite conclusion. Letter from Scott Meisler, U.S. Department of Justice ex-officio Member, U.S. Sentencing Commission to the Honorable Carleton W. Reeves, June 21, 2024. Both can quote from individual commissioners –
As Commissioner Gleeson observed last year during the vote on retroactivity of Parts A and B of Amendment 821 (the 2023 Criminal History Amendment), remedying overly punitive sentencing policies and practices that have a disproportionate effect on Black and Brown people implicates fundamental fairness concerns within the sentencing guidelines and the criminal justice system, more broadly.
Letter from Heather Williams at p. 3.
As then-Commissioner Howell observed in 2011, “the Commission has over its history used its authority under 28 U.S.C. § 994(u) infrequently to [make] retroactive guideline amendments that reduce sentencing ranges.” That same year, then-Chair Saris explained that, “because of the importance of finality of judgments and the burdens placed on the judicial system when a change to the guidelines is applied retroactively, the Commission takes this duty very seriously and does not come to a decision on retroactivity lightly.”
Letter from Scott Meisler at p. 2.
Both can reasonably analyze the §1B1.10 factors and come to opposite conclusions. And while prosecutors and defense attorneys coming to such opposite conclusions is not something novel or unexpected, the factors listed in §1B1.10 are particularly unhelpful in creating any cognizable and applicable standard for retroactivity, at least without further explanation by the Commission about how and why it applies those factors and how and why they interact with one another and with the principle of finality.
The Commission has expressed no principles for the application of the §1B1.10 factors listed and especially how they weigh against the interests of finality. While §1B1.10 has been amended many times to address the mechanics and application issues of amendments that have been applied retroactively, the Commission has not addressed its decision-making on which amendments to apply retroactively.
Should retroactive application of guideline amendments be limited to instances “when an amendment would rectify an inequity,” as suggested by the Criminal Law Committee of the Judicial Conference? Letter from the Honorable Edmond E. Chang Chair, Committee on Criminal Law of the Judicial Conference of the United States, to the Honorable Carleton W. Reeves, pp. 4-5, June 21, 2024. Should retroactivity be used “to rectify past unwarranted disparity in applying [an] enhancement” as suggested by the Federal Defender Sentencing Guidelines Committee? Letter from Heather Williams at p. 12. How does the Commission weigh the complexity of applying an amendment retroactively? How does it weigh the impact of retroactivity on the federal criminal justice system generally and how does that analysis relate to the legislative history of 28 U.S.C. § 994(u) which states: “the Committee does not expect that the Commission will recommend adjusting existing sentences under the provision when guidelines are simply refined in a way that might cause isolated instances of existing sentences falling above the old guidelines or when there is only a minor downward adjustment in the guidelines. The Committee does not believe the courts should be burdened with adjustments in these cases.” S. Rep. 225, 98th Cong., 1st Sess. 180 (1983). How did the Commission decide to apply the “status points” amendment retroactively last year when the amendment leads in the vast majority of cases to the equivalent of a one-level adjustment and how is that consistent with Congress’ direction not to apply an amendment retroactively when it is “only a minor downward adjustment in the guidelines?”
These and so many other questions deserve answers from the Commission. Over ten years ago, my colleague, Professor Berman, published an article discussing finality considerations, Re-Balancing Fitness, Fairness, and Finality for Sentences. Wake Forest J. L. & Pol’y, Volume 4:1, 151, 2014. In it, he identified some of the similarities and differences in the analysis of sentencing finality on the one hand and judgment finality on the other. Among other points, Professor Berman suggests different sentence finality concerns are implicated for crimes that create “lasting victims whose personal repose and psychic peace may only be well served by bestowing sentences with heightened certainty and predictability.” His article and others engaging with distinct sentence finality concerns flag components of the work the Commission ought to do and then explain to stakeholders and the public.
None of this is to suggest that developing a reasoned Commission opinion – and set of principles from the §1B1.10 factors – on how it implements § 994(u) will be simple. Last year’s 4-3 vote on retroactivity by members of the Commission regarding criminal history amendments suggests there may be majority and dissenting opinions. There will certainly be differences of views among the commissioners, some of which will be reconcilable and some of which will not. Nonetheless, the Commission owes it to the rest of us to wrestle with these issues, first privately, but then in a detailed, written, and reasoned accounting of its decision-making. Congress wisely gave the Commission the responsibility for retroactivity decisions. But the Commission owes it both to Congress and the rest of us, to exercise its expertise more deliberately, explicitly, and transparently.