Recidivism and Retroactivity from U.S. Sentencing Commission

In July of this year, the United States Sentencing Commission issued their Retroactivity and Recidivism Report for the Drug Minus Two Amendment. While many of you may not have a case that is implicated by the two-level reduction, the information may still be important to you as you seek either a compassionate release or whatever reforms come in the next two years.

What Is the Two-Level Reduction?

The United States Sentencing Commission did a study of "the recidivism rate of offenders released pursuant to the retroactive application of the Drugs Minus Two Amendment with the recidivism rate of similar offenders who completed their full sentences and were released prior to the effective date of the Drugs Minus Two Amendment."

What Were the Findings on Recidivism?

The key findings were listed on page 6 of the study. You can view the original study here.

There was no statistically significant difference in the recidivism rates of the Retroactivity Group and the Comparison Group.

The retroactivity were the offenders who were released on average 37 months early through retroactive application of the Drugs Minus Two Amendment. The comparison group were the offenders who would have been eligible for retroactivity but had served their sentences before retroactivity took effect.

Over a three-year period following their release from prison, the Retroactivity Group had a recidivism rate of 27.9 percent compared to 30.5 percent for the Comparison Group. This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission. The careful consideration of those criteria by judges, particularly public safety considerations, is used in exercising their discretion to grant or deny retroactivity motions.

The similarity in the recidivism rates of the Retroactivity Group and the Comparison Group held true across all drug types.

Offenders in the Retroactivity Group had similar recidivism rates to offenders in the Comparison Group, although the recidivism levels varied by drug type. The primary drug types were powder cocaine, crack cocaine, heroin, marijuana, methamphetamines and other.

The highest rates were observed among crack cocaine offenders; 35.1% in the Retroactivity Group and 37.5% in the Comparison Group.

The lowest rates among powder cocaine offenders; 19.5% in the Retroactivity Group and 22.3% in the Comparison Group.

For both the Retroactivity and Comparison Groups, approximately one-third of offenders who did recidivate (34.4% and 33.1%, respectively) had a court or supervision violation as their most serious recidivism event.

Among offenders who did recidivate, the median time to recidivism was approximately 15 months for both groups.

Why Is Recidivism Report Important Now?

The USSC said that the comparable rates of recidivism could be attributed, in part to the eligibility criteria required by the commission "and the careful consideration of those criteria by judges – particularly public safety considerations – in exercising their discretion to grant or deny retroactivity motions." As many of you may remember, a motion for the two level reduction was filed under 18 USC 3582(c)(2), which says:

"(2)in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

So in other words, back during the two level reduction, there were two things that the court had to determine in order to grant the reduction: