U.S. Sentencing Commission Votes to Delete Recency Points in Federal Sentencing

On April 13, 2010, the U.S. Sentencing Commission voted to amend the Federal Sentencing Guidelines Manual by deleting §4A1.1(e) (recency points).  This paragraph of the Manual increased the number of “points” in determining a defendant’s criminal history category by 2 if the defendant committed the instant offense less than two years from release from imprisonment or on escape status from a prior offense.  What this means is that, in federal court, you were looking at more punishment if you committed a crime not long after being released from prison for another crime.

The Sentencing Commission has decided to remove this provision from the guidelines, ostensibly because points added for recency do not accurately serve the intended purposes of the criminal history calculation of Chapter Four of the Federal Sentencing Guidelines Manual, which is “first, to predict recidivism, and second, to reflect offender culpability.”  The recency provision was included in the 1980s by the original Commission without the benefit of data, with the Commission “assuming” that “recency of the defendant’s prior record” was a “reliable predictor of future criminal conduct” because it was “very similar” to those included in the Salient Factor Score of the United States Parole Commission and the Inslaw Scale.”  See Written Statement of Margy Meyers, Incoming Chair, Federal Defender Sentencing Guidelines Committee and Marianne Mariano,  Federal Public Defender for the Western District of New York On Behalf of the Federal Public and Community Defenders Before the United States Sentencing Commission Public Hearing on Proposed Amendments for 2010 Re: Alternatives to Incarceration, Specific Offender Characteristics, Application Instructions, and Recency, March 17, 2010. 

Now, some 25 years later, the Commission has had time to gather data and has done some studies, and apparently has determined that the “recency” of committing a “new” crime really has no predictive quality in determining whether any given defendant is “more culpable.”  Therefore recency points will be eliminated on November 1, 2010, if nothing happens in the interim.  In the meantime, as always, federal judges are free to sentence you independently of the Federal Sentencing Guidelines, so your lawyer should already be arguing against any calculations based on “recency” points.

All of this may not mean much to you, but suffice it to say that if you are like me you wouldn’t want your federal sentence determined by “assumptions” based on incomplete data.  As I’ve said, the current structure of federal sentencing is incredibly complex, and if you are charged in federal court you will want a lawyer that keeps up with the frequent changes in this area of law, and can use them to your benefit.