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For Inmates, Sentencing Reforms Bring Hope And Frustration

By Emma Cueto | January 27, 2019, 8:02 PM EST

Matthew Charles made national headlines in December 2017 when a court ruled that his sentence for dealing crack cocaine had been improperly shortened and he was ordered back to prison two years after his release in order to serve another 10 years. But this month, Charles was out for good thanks to the First Step Act.

The First Step Act, which passed in December, was the first piece of major criminal justice reform legislation in years, and its effects are now starting to be felt across the criminal justice system, both by people like Charles who are benefiting from its provisions and people who were left out.

The First Step Act "was just that: A good first step, but just beginning of reforms that were needed," said Priya Raghavan, an attorney with the Justice Program at the nonpartisan Brennan Center.

The act included several major changes, including allowing people in federal prison to accrue more time off for good behavior and enforcing existing protections for people in federal custody.

Much of the bill, however, dealt with sentencing changes. The bill gave federal judges more leeway to ignore mandatory minimums for low-level offenders, relaxing the harsh penalties in so-called three-strikes laws for drug offenses, and made changes to the "stacking" provisions for gun offenses, which result in longer stretches behind bars.

Overall, more than 2,150 defendants could benefit from these changes per year, according to data from the U.S. Sentencing Commission.

The bill also made changes in the 2010 Fair Sentencing Act retroactive, allowing over 3,000 people still serving long convictions for crack cocaine to petition for a reduction in their sentences.

That provision is the one that allowed Matthew Charles to exit prison. Michael Holley, a federal defender who worked on Charles case, said that Charles was an ideal candidate for sentencing reduction, and his case was ideally positioned to be heard right away.

"It was all primed for the government to look at," he said. "We'd had all this litigation in the past year ... so the judge was fully aware of his case and the prosecutor was fully aware of the case."

Prosecutors also responded to the petition ahead of the deadline to say that they did not oppose the request to reduce Charles' sentence, he said, allowing him to get out even more quickly.

For other people, Holley said, the process might take longer. The Federal Public Defenders Office has compiled a list of people in their records who might be able to benefit from the law, he said, and attorneys in the office are reviewing those cases and will file petitions for anyone they find to be eligible.

Prosecutors are able to contest that eligibility, and can also argue that an individual does not deserve a sentence reduction, meaning the process can take some time.

However, the only people able to take advantage of the process at all are those with crack cocaine convictions sentenced before the Fair Sentencing Act of 2010. There are also thousands of people serving sentences that have been modified or done away with under the Fair Step Act but who cannot use the law to petition for a new sentence.

One such person is Darius Bailey, who was sentenced to 30 years in prison for bank robbery in 1996 at age 19. Bailey pled guilty to two gun offenses, and prosecutors opted to stack the sentences — meaning the second charge on the indictment was treated as a repeat offense that legally required a much longer prison term than a first-time offender would normally receive. The law also required the sentences for the two offenses to be served consecutively.

The First Step Act modified this system, clarifying that a second charge on the same indictment could not be treated as a second offense, and that a person must have been previously convicted of a gun crime to warrant the enhanced penalties. However, these changes were not made retroactive, leaving Bailey out in the cold.

"I accept that the consequences of my actions mandate that I pay my debt to society with a period of incarceration, but now the United States Congress has agreed that the very statute that I've been sentenced under is unreasonably harsh," Bailey said in an email to Law360.

"How is it morally justifiable to say that the people who were actually the recipients of the penalties that Congress has described as 'overly harsh' and 'draconian,' should not have the opportunity to have our sentences reviewed?" he said.

Over the years, he said, he has watched various bills be introduced in Congress that would have offered him a chance to petition for a reduced sentence, but that none have passed. When the First Step Act passed without making the gun stacking changes retroactive, he said, he was not surprised but was "disheartened."

Overall, about 700 people in federal custody are serving sentences under the stacking provisions changed in the First Step Act, and over 3,000 under the three-strikes laws that have now been relaxed, according to the American Civil Liberties Union.

Jesselyn McCurdy, deputy director of the ACLU's Washington legislative office, told Law360 that she hopes Congress will take on new criminal justice reforms soon but is not banking on it.

"What my experience is, particularly with Congress, on criminal justice issues there ... won't be an appetite to come back to this any time soon," she said.

However, she said, it's possible that if there is a next round, Congress might be willing to make the sentencing reforms in the First Step Act retroactive in the same way that the First Step Act did for those in the Fair Sentencing Act.

Raghavan echoed this sentiment, saying that Congress might have been willing to make those changes retroactive in part because there was data to show that the effects of the Fair Sentencing Act had been largely positive. However, she said, she hopes that Congress won't let eight years go by this time before taking up the issue.

"I certainly hope that we will see and I hope we will see it sooner rather than later," she said. "The longer you wait, the less impactful it is."

For Bailey, he's tried to at least make some use of the First Step Act by updating his petition for clemency to highlight the fact that he would not have received the same sentence today.

McCurdy said that's a smart move, and something that would have given him a good chance under the Obama administration. The Trump administration, however, has yet to develop a real system for pardons and clemency, which McCurdy said isn't unusual for a first-term president.

However, she said, the ACLU has not given up on pushing for more retroactive reforms.

"We will continue to fight for the people who are currently being incarcerated under the old versions of these laws," she said.

--Editing by Brian Baresch.

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