UNITED STATES SENTENCING COMMISSION

Recidivism Among Offenders Receiving

Retroactive Sentence Reductions:

The 2007 Crack Cocaine Amendment
Patti B. Saris

Chair

Ricardo H. Hinojosa

Vice Chair

Ketanji B. Jackson

Vice Chair

Charles R. Breyer

Vice Chair

Dabney L. Friedrich

Commissioner

Rachel E. Barkow

Commissioner

William H. Pryor, Jr.

Commissioner

Isaac Fulwood, Jr.

Ex Officio

Jonathan J. Wroblewski

Ex Officio

Kenneth P. Cohen

Staff Director

Glenn R. Schmitt

Director

Office of Research and Data

Louis Reedt

Deputy Director

Office of Research and Data

May 2014

United States Sentencing Commission

One Columbus Circle, N.E.

Washington, DC 20002

www.ussc.gov
Recidivism Among Offenders

Receiving Retroactive Sentence

Reductions: The 2007 Crack

Cocaine Amendment

Kim Steven Hunt, Ph.D.

Andrew Peterson, Ph.D.

Office of Research and Data

In 2007, the United States Sentencing Commission amended the

Drug Quantity Table in section 2D1.1 of the sentencing guidelines1

for offenses involving crack cocaine. The amendment, which

became effective November 1, 2007, reduced by two levels the

base offense levels assigned by the Drug Quantity Table for each

quantity of crack cocaine (the “2007 Crack Cocaine Amendment”).

Also in 2007, the Commission voted to give retroactive effect to the

amendment, which allowed judges to consider motions for

retroactive application of the amendment and reduce sentences for

those incarcerated under the previous guidelines. The retroactive

application of the 2007 Crack Cocaine Amendment took effect on

March 3, 2008.

This publication reports on recidivism of crack cocaine offenders

who were released immediately before and after implementation of

the 2007 Crack Cocaine Amendment, and followed in the

community for five years. In order to study the impact of

retroactive sentence reduction on recidivism rates, staff analyzed

the recidivism rate for a group of crack cocaine offenders whose

sentences were reduced pursuant to retroactive application of the

2007 Crack Cocaine Amendment. Staff then compared that rate to

the recidivism rate for a comparison group of offenders who would

have been eligible to seek a reduced sentence under the 2007

Crack Cocaine Amendment, but were released before the effective

date of that amendment after serving their full prison terms less

good time and other earned credits.

The question addressed by this study is: “Were offenders who

received a reduced sentence retroactively under the 2007 Crack

Cocaine Amendment more likely to recidivate than similarly

situated offenders who did not receive a reduced sentence?” As

discussed more fully below, there is no evidence that offenders

whose sentence lengths were reduced pursuant to retroactive

application of the 2007 Crack Cocaine Amendment had higher
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United States Sentencing Commission

recidivism rates than a comparison group of crack cocaine

offenders who were released before the effective date of the 2007

Crack Cocaine Amendment and who served their full prison terms

less earned credits.

Retroactive Application of the 2007 Crack Cocaine

Amendment

The Commission is required by statute to determine whether a

guideline amendment that reduces the sentencing range applied

to a particular offense or category of offender may be retroactively

applied.2 If the Commission determines that a guideline

amendment may be retroactively applied, sentencing courts are

then authorized upon a motion of the offender, the Director of the

Bureau of Prisons, or the court itself to reduce the term of

imprisonment, provided the sentencing range that would apply in

the case would be lowered by the guideline that was amended,3

and the reduction is consistent with any applicable policy

statements issued by the Commission. Within this framework,

sentencing courts have discretion in determining whether, and to

what extent, to reduce the sentence for any offender legally

eligible to be considered for retroactive application of the

amended guideline. In making this determination sentencing

courts must consider the factors listed at 18 U.S.C. § 3553(a),

which are also considered at the time an offender is first

sentenced, as well as the risk to public safety that might result

from a reduction in the sentence of an offender.4

On December 11, 2007, the Commission voted to authorize courts

to apply the 2007 Crack Cocaine Amendment retroactively,

beginning on March 3, 2008.5 As of June 29, 2011, the courts had

decided 25,736 motions for retroactive application of the

amendment.6 Of those motions, 16,511 (64.2%) were granted,

and 9,225 (35.8%) were denied. Among the motions denied,

7,795 (77.2%) were filed on behalf of offenders who were legally

ineligible for any sentence reduction.7 The courts denied 14.8

percent of motions on the merits as an exercise of the courts’

discretion, and no more than 6.0 percent of all motions were

denied for reasons that may be related to public safety.8
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

The Commission's Recidivism Study

The Study Results

The overall recidivism rate for the offenders who received

retroactive application of the 2007 Crack Cocaine Amendment (the

“Retroactivity Group”) was similar to the recidivism rate for

offenders who were released prior to the effective date of the 2007

Crack Cocaine Amendment and who had therefore served their full

sentence (the "Comparison Group").9

Of the Retroactivity Group, 43.3 percent of the offenders

re-offended within five years. In the Comparison Group,

47.8 percent of offenders re-offended within five years. This

difference was not statistically significant.

New arrests were the most common indication of offender

recidivism in both groups. In the Retroactivity Group, new arrests

Retroactive sentence

reductions did not result in

higher recidivism rates for

the Retroactivity Group.

For this study, recidivism was

defined as any of the following

criminal record events occurring

within a five-year period following

release from incarceration:

• a re-conviction for a new

offense;

• a re-arrest with no case

disposition information

available; or

• a revocation of an offender’s

supervised release.
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U.S. Sentencing Commission

occurred in 33.9 percent of the cases, and revocations without an

arrest were recorded in 9.4 percent. Similarly, in the Comparison

Group, new arrests occurred in 37.3 percent of cases, and

revocations without an arrest were recorded in 10.6 percent.

Again, these differences were not statistically significant.

The time period within which offenders in both groups re-offended

was also similar, and the recidivism rate climbed steadily

throughout the five year period. For example, at one year after

release, 17.1 percent of the Retroactivity Group had re-offended

and 18.6 percent of the Comparison Group had re-offended. At two

years, 31.5 percent of the Retroactivity Group and 34.4 percent of

the Comparison Group had re-offended. During the last three years

of the five year period, some offenders from each group who had

not re-offended in the preceding year were discovered to have

re-offended in the following year, until the overall five year

recidivism rates were reached.

As discussed more fully below, the Retroactivity Group and the

Comparison Group were demographically similar. The vast

majority of offenders in both groups were male and Black, and the
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

recidivism rates for these demographic groups were similar in both

groups and any differences were not statistically significant.10 The

average age at release of recidivists was similar (33.5 years and

33.8 years, respectively), and recidivists in both groups were

younger than the average of all released offenders (36.3 years and

35.4 years, respectively). Younger offenders were more likely to

re-offend in both groups, but the difference between the two groups

was not statistically significant.

Recidivism rates between the two groups are similar when broken

out by criminal history category (CHC). Higher CHCs (resulting

from more prior crimes and/or more serious crimes) are common

risk factors in recidivism.11 In this study, recidivism rates rose with

CHC in both groups at similar levels. Although there were slight

differences between the recidivism rates of the Retroactivity Group
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United States Sentencing Commission

and the Comparison Group, these differences were not statistically

significant.

In the Retroactivity Group, recidivism rates ranged from 28.5

percent (CHC I) to 55.7 percent (CHC V). In the Comparison

Group, recidivism rates ranged from 36.2 percent (CHC I) to

59.5 percent (CHC V). Offenders with higher CHCs were more

likely to re-offend in both groups, but the difference between the

two groups was not statistically significant.

The Retroactivity Group was more likely to have received a

sentence increase for weapon involvement as part of the instant

offense than was the Comparison Group. However, this difference

was not associated with a statistically significant difference in

recidivism rates. Recidivism rates among offenders with weapon

involvement were similar, at 50.0 percent in the Retroactivity Group

and 45.2 percent in the Comparison Group. As a result, despite

the fact that the two groups differ with respect to sentence

increases for weapon involvement as discussed later in this report,

this difference did not affect the overall conclusions of this report.
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

The position of the original sentence relative to the guideline range

also was not associated with statistically significant differences in

recidivism rates. Among those sentenced within the range, 42.0

percent of the Retroactivity Group re-offended as compared to 47.7

percent of the Comparison Group. Among those sentenced below

the range at the request of the government, the recidivism rates

were 46.7 percent and 47.7 percent, respectively. The recidivism

rates for offenders with non-government sponsored below range

sentences, 44.2 percent for the Retroactivity Group and 46.9

percent for the Comparison Group, were based on small numbers

of cases and the differences were not statistically significant.
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United States Sentencing Commission

Regarding the date of the original sentence, the United States

Supreme Court's decision in United States v. Booker 12 made the

sentencing guidelines advisory and is a useful point of comparison.

Among those sentenced Pre-Booker, 41.7 percent of the

Retroactivity Group re-offended as compared to 47.3 percent of the

Comparison Group. Post-Booker differences were 47.4 percent

and 49.5 percent respectively. As with the other offense and

offender factors, the date of sentencing did not differentiate the

Retroactivity Group and Comparison Group from each other, and

the recidivism differences were not statistically significant.

The Study Subjects

Two groups were identified for study: the Retroactivity Group who

received retroactive application of the 2007 Crack Cocaine

Amendment and the Comparison Group of offenders who were

released prior to the effective date of the 2007 Crack Cocaine

Amendment and who had, therefore, served their full sentence.

The current study expands on a previous study13 and followed

released offenders for five years, or until their first recidivism

event.14
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

For the Retroactivity Group, Commission staff reviewed all

available criminal records for offenders released during the period

July 1, 2008 through November 30, 2008 pursuant to the 2007

Crack Cocaine Amendment.15 The Comparison Group was drawn

from a sample of otherwise eligible16 crack cocaine offenders who

were released during the 12 months prior to the effective date of

the 2007 Crack Cocaine Amendment (March 3, 2008). The

Comparison Group’s available criminal records were also

reviewed. Commission staff then compared the recidivism rates of

the two groups.17

The study included crack cocaine offenders who:

1. received a modified sentence pursuant to the retroactive

application of the 2007 Crack Cocaine Amendment – for

offenders in the Retroactivity Group;

2. met the eligibility requirements set forth in the 2007 Crack

Cocaine Amendment – for offenders in the Comparison Group;

3. were available to be tracked in the community for five years

immediately after release following service of the prison

sentence for the federal crack cocaine offense (not detained or

deported or otherwise lost to the study) or until their first

recidivism event, whichever came first – for both groups; and

4. could be matched successfully to FBI criminal records using

Commission sentencing records – for both groups.

The Study Methodology

The study methodology was consistent with previous Commission

studies of offender recidivism and was similar to other protocols

such as those previously followed by the Bureau of Justice

Statistics. The data on the offender’s criminal history was supplied

by the FBI under an agreement with the Commission. The

recidivism literature recognizes that the FBI offender criminal

records are sufficiently reliable and constitute a nationwide source

from which to measure repeat criminal behavior.
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United States Sentencing Commission

In summary, the Commission collected criminal records on all

crack cocaine offenders released pursuant to retroactive

application of the 2007 Crack Cocaine Amendment between July

1, 2008 and November 30, 2008 and examined the chronology of

criminal events in those records for five years after release. This

resulted in a study group of 836 offenders for inclusion in the

Retroactivity Group. The Comparison Group consisted of a

random sample of 483 similarly situated crack cocaine offenders

who met all requirements and were released between March 1,

2007 and February 29, 2008—too early to benefit from retroactive

application of the 2007 Crack Cocaine Amendment.

Foundation of a Natural Experiment: Similar Groups

In a conventional experiment, an intervention (e.g., retroactive

sentence reduction) is introduced to a randomly selected group,

and one can observe the intervention’s effect on an outcome of

interest (e.g., recidivism). The outcome is also observed in a

comparison (or control) group who is otherwise like the treatment

group, but who is randomly selected not to receive the

intervention. In contrast, the 2007 Crack Cocaine Amendment

created a “natural” experiment, with treatment and comparison

groups of offenders, in which the Retroactivity Group was granted

a sentence reduction at the court’s discretion which was not

available to an otherwise eligible set of offenders (the Comparison

Group), as previously discussed. The effect of the sentence

reduction, if any, may be observed by comparing subsequent

offender recidivism between the two groups. Because the

offenders were not randomly assigned to the two groups under

experimental conditions, it is important to rule out initial group

differences which may produce differential levels of recidivism.

This section of the publication demonstrates that the Retroactivity

and Comparison Groups were substantially similar across a range

of characteristics, except that one group benefitted from sentence

reduction.

Crack cocaine offenders in the Retroactivity and Comparison

Groups were demographically similar. The Retroactivity Group

was 92.1 percent male and 88.2 percent Black. The Comparison
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

Group was 90.9 percent male and 85.7 percent Black. The

average ages of the two groups upon prison release was also

similar (36.3 years and 35.4 years, respectively).
U.S. Sentencing Commission

12

The distribution of CHCs of the two groups also was very similar.

The most common CHC in both groups was CHC I (27.3% in the

Retroactivity Group and 29.4% in the Comparison Group), while

the next most common category in both groups was CHC III

(25.4% and 25.8%, respectively). In each group, approximately 30

percent of the crack cocaine offenders were in CHCs IV through

VI, which indicates that many crack cocaine offenders in each

group had substantial criminal records prior to their instant offense.

Drug offenders may receive sentence increases for involvement of

a weapon, and there was a statistically significant difference

between the two groups on this factor. Over 28 percent (28.0%) of

Retroactivity Group offenders received sentence increases for

weapon involvement as part of the instant offense, as compared to

almost 22 percent (21.5%) of offenders in the Comparison Group.

The Retroactivity Group offenders were significantly more likely to

have received sentence increases for weapon involvement as part

of the instant offense.
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

Most offenders in both groups were originally sentenced within the

applicable guideline range (63.7% in the Retroactivity Group and

60.7% in the Comparison Group). In the Retroactivity Group, 30.7

percent were sentenced below the range based upon a motion

sponsored by the government, as compared to 32.3 percent of the

Comparison Group. An additional 5.2 percent in the Retroactivity

Group were sentenced below the range for a reason not

sponsored by the government, as compared to 6.8 percent in the

Comparison Group. The remainder in both groups received an

above range sentence (0.5% and 0.2%, respectively).

Most offenders in both groups were sentenced prior to the Booker

decision in 2005 which rendered the guidelines advisory in nature

(72.3% and 77.9% respectively).
U.S. Sentencing Commission

14

The average length of imprisonment for crack cocaine offenders in

the Retroactivity Group before the reduction pursuant to the 2007

Amendment was 107.1 months, and almost one year longer than

the average length of imprisonment for the Comparison Group,

96.8 months.18 However, the average sentence for the

Retroactivity Group, after the offenders were resentenced pursuant

to retroactive application of the amendment, was 85 months.19

In summary, when considering whether the sentence reduction

due to the 2007 Crack Cocaine Amendment increased recidivism

rates, these two groups represent an unbiased comparison. The

Retroactivity and Comparison Groups were well matched on

demographic, criminal history, and original sentencing

characteristics.

Conclusion

The analysis compared the recidivism rates of two groups of crack

cocaine offenders. Offenders in the Retroactivity Group were

estimated to receive retroactive sentences which were

approximately twenty percent shorter than their original sentences

due to retroactive application of the 2007 Crack Cocaine

Amendment. The Comparison Group included offenders released
Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

15

prior to the effective date of the 2007 Crack Cocaine Amendment,

who served their full prison terms, and matched the Retroactivity

Group on eligibility criteria. A comparison of the two groups

revealed substantial similarities in selected factors measuring

offender demographic characteristics, offender criminal history

categories, and original sentence characteristics.

The Commission study found that the offenders in the two groups

re-offended at similar rates. Among those who re-offended, the

ratio of new arrests to revocations and timing of recidivism were all

comparable. The two groups’ recidivism rates remained

comparable over the entire period. While two factors were found

to be related to greater recidivism—higher criminal history category

and younger age—this relationship was found within each group in

similar numbers. In summary, the analysis showed no statistically

significant difference in the recidivism rates of the two groups.
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United States Sentencing Commission

Endnotes

1. U.S. SENT’G COMM’N, GUIDELINES MANUAL § 2D1.1 ((UNLAWFUL MANUFACTURING, IMPORTING, EXPORTING, OR

TRAFFICKING (INCLUDING POSSESSION WITH INTENT TO COMMIT THESE OFFENSES); ATTEMPT OR CONSPIRACY) (hereinafter

USSG).

2. See 18 U.S.C. § 994(u).

3. 18 U.S.C. § 3582(c)(2).

4. Id. That section requires courts to act in a manner “consistent with the applicable policy statements issued by the

‘Sentencing Commission.’” Id. See also USSG §1B1.10 (Reduction in the Term of Imprisonment as a Result of

Amended Guideline Range), comment. (n.1(B)) (providing factors that a court shall consider in determining whether

and to what extent to reduce a term of imprisonment). USSG §1B1.10 is the policy statement that a court must

consider when deciding a motion to reduce a sentence of imprisonment based on the retroactive application of an

amended guideline.

5. USSG, App. C, Amend. 713 (effective Mar. 3, 2008) (hereinafter USSG) (adding Amendment 706 as amended by

711 to the amendments listed in subsection (c) of USSG §1B1.10 that apply retroactively).

6. U.S. SENT'G. COMM'N., PRELIMINARY CRACK COCAINE RETROACTIVITY DATA REPORT, TABLE 1 (JUNE 2011).

7. Id. at Table 9.

8. Id.

9. Offenders served their full sentences, less reductions for earned credit.

10. Specifically, recidivism rates for males in the two groups were very similar (45.1% and 49.0%, respectively). The

recidivism rates of female offenders in the Retroactivity Group and the Comparison Group were based on small

sample sizes, but also were similar (22.7% and 36.4%). Recidivism rates for Blacks in the two groups differed slightly

(43.3% and 49.0%, respectively). The recidivism rates of White offenders in the Retroactivity Group and the

Comparison Group were similar (39.3% and 41.3%), as were the rates for Hispanic offenders (45.7% and 42.1%).

The results for White and Hispanic offenders were based on relatively small number of cases.

11. See generally USSG, Ch. 4.

12. United States v. Booker, 543 U.S. 220 (2005).

13. Memorandum from Kim Steven Hunt and Andrew Peterson to Commissioners & Staff Director, “Recidivism

Among Offenders with Sentence Modifications Made Pursuant to Retroactive Application of 2007 Crack Cocaine

Amendment,” (May 31, 2011) available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/

research-projects-and-surveys/miscellaneous/20110527_Recidivism_2007_Crack_Cocaine_Amendment.pdf.

14. Some offenders could not be reliably tracked for a full five years or until after the first recidivism event following

completion of their sentence, such as offenders who died, were deported or otherwise detained following completion

of their drug sentence. Those offenders were removed from the study.

15. Staff selected July 1, 2008 as the earliest release date for inclusion for offenders in the Retroactivity Group, rather

than the March 3, 2008 effective date of the retroactive application of the 2007 Crack Cocaine Amendment. Using the

July 1 date allowed staff to avoid analysis of offenders released during the weeks immediately following the effective

date of retroactive application of the 2007 Crack Cocaine Amendment when disruptions to Bureau of Prisons

programming and re-entry procedures, caused by the large volume of crack cocaine offenders released in the first few

weeks, would have been greatest. For example, the retroactive application of the reduction in time served for crack

offenders saw hundreds of inmates removed from waiting lists for those awaiting treatment in residential drug abuse

programs. See FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, STATE OF THE BUREAU 2009, 26 (2010).

16. The eligibility criteria included: the drug involved was crack cocaine; the base offense level was between 14 and

42; the quantity of crack cocaine was less than 4,500 grams; the offender’s final offense level was not derived from

the Career Offender (USSG §4B1.1) or Armed Career Criminal (USSG §4B1.4) guideline; and the offender’s original

sentence was greater than any applicable statutory minimum punishment, unless relief from the mandatory minimum

was provided through the statutory safety valve or the offender received a departure under USSG §5K1.1 for

substantial assistance when originally sentenced.
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Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment

17. The Retroactivity Group included 836 offenders and the Comparison Group included 483 offenders. The sample

size of each group, while different, is sufficient to perform the statistical analyses that follow.

18. The 10.3 month difference in original length of imprisonment between the Retroactivity Group and the

Comparison Group may appear larger than expected. However, under ordinary release procedures such as those

followed for the Comparison Group, prisoners released at any given time “are more likely to be those with shorter

sentences” and estimates tied to releases “understate actual time served” for all prisoners. See Alfred Blumstein &

Allen J. Beck, Population Growth in U.S. Prisons, 26 CRIME & JUST. 17, 34 (1999). It follows that extraordinary

release procedures such as those followed under the 2007 Crack Cocaine Amendment, which advanced the release

dates of many prisoners, including many with longer than average sentences, may lessen this tendency to understate

sentence length and associated time served in prison, and may have contributed to the difference between the two

groups.

19. Forty-nine offenders in the Retroactivity Group received a sentence reduction of unspecified length and

subsequently were released, and as a result the reduction from their original sentence cannot be calculated.