The First Step Act Freed People. Now Prosecutors Are Trying To Lock Some Of Them Up Again.

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Monae Davis, a beneficiary of the First Step Act, left prison on March 7. “Now the U.S. Justice Department is trying to lock him back up,” reports Andy Sullivan for Reuters. As Davis, 44, looks for work and reconnects with his family and community, “U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence.” Davis pleaded guilty in 2009 to selling 50 grams or more of crack. Under the First Step Act, that charge carries a minimum sentence of five years, and he had already served 10. But now prosecutors say Davis should not have been released, because in his plea deal he admitted to handling a higher quantity, which under guidelines would make him ineligible for a sentence reduction.

A Reuters investigation has found that Davis is not alone. Federal prosecutors have fought over 80 petitions for reduced sentences and are threatening to put more than a dozen people already released back behind bars. They justify this by saying the amount of drugs the former prisoners handled was too large to qualify for a reduced sentence. The Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution. They say prosecutors now have a greater incentive than before to stop offering reduced sentences in exchange for guilty pleas. “This is a fairness issue,” the department said.

“Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington,” according to Sullivan. “One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.” So far, the DOJ has lost 73 of 81 of these cases, though in many of them, they say they will appeal.

The DOJ’s position is, to put it mildly, wrongheaded. First, it is disingenuous for the DOJ to say it fears that people being prosecuted today might be treated more stringently than those previously sentenced because every day, prosecutors offer defendants a reduced charge or sentence to convince them to plead guilty instead of going to trial. That’s how it works. It worked that way when Davis was going through the system, and it works that way today.

Second—and maybe Attorney General William Barr should write this one down—if federal prosecutors worry that defendants today aren’t being treated leniently enough, they can just go ahead and treat them more leniently. Barr can order them to do this any time. There is no reason to throw Monae Davis back into prison.

Third, it’s an awful thing to do to a person who has served years, sometimes decades, and then finally given some hope. “It’s particularly cruel,” Mary Price, an attorney with Families Against Mandatory Minimums, told Reuters. “The whole point of the First Step Act was to give some relief to people who were sentenced to unduly long sentences.”

Fourth, these actions undermine the hard work that prosecutors around the country have done to roll back tough-on-crime policies and embrace the progressive prosecutor movement. The DOJ is playing to the old stereotype of prosecutors as bloodthirsty zealots. “They’re prosecutors—it’s their job to make it hard on people,” Davis said. “Do I think it is right? No, it’s not fair.”

The prosecutorial rebellion against the First Step Act treat the law as more radical, powerful, and effective than it actually is. At the time of its passage, even lawmakers who pushed for it were expressing reservations over its modesty. Senator Kamala Harris of California tweeted at length about the shortcomings of the bill before saying she would vote for it. “To be clear, the FIRST STEP Act is very much just that—a first step,” she wrote. “It is a compromise of a compromise, and we ultimately need to make far greater reforms if we are to right the wrongs that exist in our criminal justice system.” The National Council of Churches of Christ in the USA, a group that represents Protestant denominations, criticized the bill for relying too heavily on electronic monitoring to surveil released prisoners and for failing to make its mandatory minimum sentencing reforms retroactive. Human Rights Watch refused to endorse it, saying that it “will not provide the kind of reform that will significantly alter the damaging effects of mass incarceration.” Deanna Hoskins, president of JustLeadershipUSA, wrote, “The FIRST STEP Act will not lead to decarceration; it will, however, further perpetuate structural inequality.”

Recently, Senator Cory Booker of New Jersey and Representative Karen Bass of California proposed a bill that would go further than the First Step Act. The Matthew Charles and William Underwood Second Look Act would give people who have served more than 10 years in prison the chance to petition a court for early release. Prisoners who are 50 or older would get the presumption of release if they petitioned; judges would need to show that they are an actual threat to society to keep them incarcerated. As the Daily Appeal has reported, this bill has the potential to bring more widespread and meaningful change to the federal prison population, in addition to serving as a model for states’ decarceration efforts.

It is either fitting or ironic that the bill is named after Matthew Charles, a Tennessee man who was sentenced to 35 years for dealing crack cocaine. In prison, he held himself to high standards, and in 2016, a federal judge ordered his release based on changes to drug sentencing guidelines. He rebuilt his life on the outside, volunteering and reconnecting with family, but prosecutors were not done with him. Much as they are trying to do to First Step beneficiaries today, they argued that Charles should not have been released, and they won. After a year and a half, he was sent back to federal prison. The First Step Act is the reason he is out today, urging Congress to give all prisoners a second look.

A second-chance law “would encourage prisoners to improve themselves,” Charles wrote in an op-ed. “I got lucky. Our justice system shouldn’t depend on luck. The First Step Act is in place—now it should be used to make real change and help families. And let’s not lose any time in making a Next Step Act, because everyone deserves a second chance.” Prosecutors, meanwhile, are doubling down on cruelty.