While the criminal justice reform law known as the First Step Act, enacted last year, has a number of changes to benefit inmates, getting those changes enforced seems to be a different matter entirely.  Simply stated, in order to take advantage of the First Step Act, it appears that inmates need to get the help of experienced attorneys to make sure that those inmates are, in fact, provided with the benefits the law has to offer.

In this article we will discuss the Department of Justice’s words in connection with enforcement of the First Step Act, and then compare that with a story or two that shows that sometimes the actions do not match the rhetoric.

The Department of Justice Celebrates Major First Step Act Enforcement Developments

In January 2020, the Department of Justice orchestrated a well-publicized press event to talk about all the positive changes that have already resulted from the First Step Act.  Specifically, the Department of Justice (DOJ) focused on three major developments. 

First, the DOJ discussed inmate releases, sentence reductions, and expanded First Step Act programs. 

According to the DOJ, over 3,100 inmates were set to be released from federal custody based on the Act by virtue of the First Step Act’s “good conduct time” enhancements.  In addition, the DOJ celebrated 1,691 sentence reductions as a result of the First Step Act’s retroactive application of the Fair Sentencing Act of 2010.  Finally, the Bureau of Prisons (BOP) and the U.S. Probation Offices throughout the country announced other provisions of the First Step Act, including:

Second, the DOJ announced that the First Step Act is fully funded, specifically making available the full $75 million called for in the law.  The number of activities requiring funding, from vocational training and increased volunteer support, to providing English as a Second Language textbooks and computer-based educational courseware, is a vast improvement from the days before the First Step Act.  

Third, the DOJ developed a new risk and needs assessment tool – PATTERN – to improve the understanding of each federal inmate as an individual.  The tool was designed to predict the likelihood of general and violent recidivism for all inmates, and thereby make intelligent assessments as to whether an inmate needs further treatment services or is a good candidate for early release. 

The Devil is in the Details – the DOJ Trying to Keep Some Inmates in Prison

While the DOJ in its January 2020 press conference mentioned the release of over 2,400 inmates based on the First Step Act’s retroactive application of the Fair Sentencing Act of 2010, it seems that there is more there than meets the eye.  Specifically, news reports seem to indicate that those releases have not been as easy to obtain as suggested by the DOJ.

For example, in March 7, 2019, Monae Davis was released from prison after a federal judge took off six years from his 20-year sentence based on the First Step Act.  Rather than move on to other cases, however, the DOJ spent a great deal of energy trying to lock Mr. Davis back up. 

Mr. Davis pleaded guilty to selling 50 grams or more of crack cocaine in 2009.  In fact, he admitted to handling between 1.5 and 4.5 kilograms of the drug.  He was sentenced to 20 years at the time.  Under the new First Step Act guidelines, the minimum sentence for someone pleading guilty to selling 50 grams of crack would be five years – less than half of the time that Davis already served.  The DOJ, however, is arguing that the actual amount of drugs Davis handled does not qualify him for the sentence reduction given to him by the federal judge.

To give some context, the DOJ has not challenged most of the sentence-reduction cases under this provision of the First Step Act.  However, in 81 cases the DOJ has tried to keep inmates behind bars.  In virtually all of those 81 challenges, the DOJ has been unsuccessful.  Yet, the DOJ seems to be focused on trying to pull some inmates back into prison.  One of the authors of the First Step Act, Senator Dick Durbin, has expressly stated that the DOJ’s actions are not what those who shaped the law wanted to see happen. 

Senator Durbin stated: “Many of these people have served in prison for five, 10, 15, 20 years and more.  It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind.”

In another example, an inmate who was released in February 2019 – and even appeared at the ceremony celebrating the First Step Act in April 2019 – was facing a similar appeal by the DOJ, in which federal prosecutors were trying to force him back to prison.  Fortunately, that case was ultimately dropped.  

What to Do?  Make Sure You Are Well Represented

There is a conclusion from all of the above.  On the one hand, the DOJ appears to be embracing the positive changes ushered in by the First Step Act.  Yet, on the other hand, the DOJ is still working to keep some inmates in prison after they had their sentences reduced under the First Step Act. 

Chalk it up to muscle memory, or that some federal prosecutors are not quite yet on board with the fundamental changes of the First Step Act, but one thing is clear for inmates – be sure that you are represented by an experienced sentencing attorney when you seek benefits under the First Step Act. 

With the help of an experienced criminal sentencing attorney, you will have someone on your side who understands the new law and can anticipate any possible chance that the DOJ might try to unwind a sentence reduction.  Our criminal justice system is far from perfect.  Thus, you need a seasoned professional in your corner because you cannot always trust the system to do the right thing.  Your attorney, however, will make sure that the playing field is level.

Moreover, having an attorney at the beginning of the process in making a First Step Act application will minimize trouble down the road.  In the case of an over-zealous DOJ prosecutor might want to challenge a judge’s sentencing decision after the fact, your attorney will be prepared to rebut those challenges efficiently and effectively.

ABOUT THE LAW OFFICE OF JEREMY GORDON

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. 

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