As new U.S. law frees inmates, prosecutors seek to lock some back up

Monae Davis plays with a grandchild, Dayrone Ferguson Jr., 2, after an interview at a halfway house in Buffalo, New York, U.S., July 16, 2019. Picture taken July 16, 2019. REUTERS/Lindsay DeDario

By Andy Sullivan

BUFFALO, N.Y. (Reuters) – Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.

Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.

“They’re prosecutors and it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.

The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence. Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.

But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, 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.

The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved.

“This is a fairness issue,” the department said.

A TOUTED ACHIEVEMENT

Passed by overwhelming majorities in Congress, the First Step Act stands out as a rare bipartisan achievement in an era of sharp political divisions. Trump has invited ex-offenders to the White House and his State of the Union speech.

The law allows inmates who are serving time for selling crack cocaine to ask a judge to reduce their prison sentences. It’s a belated recognition, supporters say, that tough-on-crime policies that required lengthy prison terms for crack dealers were too punitive and fell most heavily on African-Americans.

More than 1,100 inmates have been released so far under this provision in the new law, according to the Justice Department.

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried – largely unsuccessfully so far – to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant – and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington.

One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis.

Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more.

If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law.

“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,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

Florida resident Gregory Allen, freed in March, appeared with Trump at a ceremony celebrating the new law in April. Federal prosecutors in Tampa, meanwhile, had filed paperwork to appeal that decision and force him back to prison. They dropped the appeal three weeks later, without explanation.

Legal experts say they are aware of few other cases in which the federal government has tried to re-incarcerate someone who has been freed due to a sentence reduction.

“It’s particularly cruel,” said Mary Price, an attorney with Families Against Mandatory Minimums, a nonpartisan group. “The whole point of the First Step Act was to give some relief to people who were sentenced to unduly long sentences.”

A TURBULENT LIFE

According to court documents and his own account, Davis has led a turbulent life. The son of a prostitute who entered the witness protection program when testifying in a criminal case, Davis was given a new name and moved to New Orleans when he was seven years old.

By the time he was fifteen, back in Buffalo, both parents and a younger brother were dead and he was selling drugs. He dropped out of high school.

He killed a woman accidentally when he was nineteen, he said, and records show he eventually pleaded guilty to state manslaughter charges.

By the time he was 30, federal agents say, Davis oversaw a network that sold crack and cocaine across western New York and Pennsylvania.

“Your life has been a disaster, and maybe not all of it your fault,” U.S. Judge William Skretny told him in 2009 as he sentenced him.

In March, the same judge ruled that Davis should be freed under the First Step Act.

“I fell off the chair,” Davis recalled. “I couldn’t believe it.”

Prosecutors told the court they intend to appeal. The U.S. Attorney for the Western District of New York, James P. Kennedy Jr., declined to comment on Davis’s case, but said in a prepared statement that asking for appellate review ” is consistent with our mission of seeing to it that justice is done in each case.”

Meanwhile, Davis is learning to use a smartphone and planning to start welding classes in September. Eventually, he says, he aims to run a cleaning service or auto shop and set aside money for his six grandchildren so they can have a better life than he did.

“I know God has a plan for me,” he said. “I know I’m not finished yet.”

(Editing by Kevin Drawbaugh and Julie Marquis)

Error in U.S. prisons law means well-behaved inmates wait longer for release

Inmates walk the hallways during a media tour of the Curran-Fromhold Correctional Facility in Philadelphia, Pennsylvania, August 7, 2015. REUTERS/Mark Makela/File Photo

By Sarah N. Lynch

WASHINGTON (Reuters) – U.S. prisoners who were expecting earlier release for good behavior, thanks to a new criminal justice law enacted last month, must keep waiting due to an error in the bill, said activists working with the White House to fix the mistake.

Potentially thousands of inmates could be affected by the error in the First Step Act, signed into law on Dec. 21 by Republican President Donald Trump in a rare example of bipartisanship in Washington, with both Democrats and Republicans backing it.

The law required the Justice Department’s Bureau of Prisons (BOP), among other measures, to retroactively recalculate good behavior credits, a step that had been expected to reduce some inmates’ sentences by as many as 54 days per year.

Previously, inmates could only earn up to 47 days per year toward early release for good behavior.

Advocates of the law expected the bill’s enactment into law meant that several thousand inmates would get their freedom right away, in time for the 2018 holiday season.

But a drafting error in the language of the law has prevented the Justice Department from immediately applying the new method of calculating good-behavior credits, they said.

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement … or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

“It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says.

“While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says.

The White House did not immediately respond to a request for comment.

Activists said the law, as drafted, confused good-behavior credits, which reduce a sentence, with earned-time credits, which do not. Earned-time credits allow certain inmates to qualify for early transfer to halfway houses.

The law also mistakenly said that new rules on good-behavior credits could not kick in until BOP finishes a risk-assessment process for deciding which inmates can get earned-time credits.

Whether the error can be promptly fixed was unclear. A federal judge in Chicago on Jan. 3 denied a prisoner’s request to be released earlier for good behavior, citing the letter of the law.

“This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Several activists for prisoners told Reuters their groups are working with the White House on whether the Justice Department can find a work-around or if a legislative fix needs to be tucked into a broader spending bill for action by Congress. Ring said his group is also in talks with lawmakers.

The error comes at a difficult time, with the federal government in a partial shutdown. The Justice Department is one of several agencies partially closed because its funding ran out on Dec. 22 and has not been renewed by Congress.

Trump is demanding that any legislation to restore agencies’ funding must include $5.7 billion for a U.S.-Mexico border wall.

With Democrats opposing that demand, little is being accomplished in Congress and 800,000 federal workers are either working without pay or staying home on furlough.

(Reporting by Sarah N. Lynch; Editing by Kevin Drawbaugh and Jonathan Oatis)

Senate easily approves criminal justice legislation

The front gate is pictured at the Taconic Correctional Facility in Bedford Hills, New York April 8, 2016. REUTERS/Carlo Allegri/ File Photo

By Richard Cowan

WASHINGTON (Reuters) – The U.S. Senate on Tuesday overwhelmingly passed legislation long in the making and backed by President Donald Trump to reduce sentences for certain prison inmates.

By a vote of 87-12, the Republican-led Senate passed and sent to the House of Representatives the “First Step Act,” which would ease the way for some prisoners to win early release to halfway houses or home confinement.

The legislation also aims to establish programs to head off repeat offenders and protect first-time non-violent offenders from harsh mandatory minimum sentences.

Earlier this year, the House passed a bipartisan bill focusing on prison reforms, which did not include sentencing reforms.

With little time left as Congress tries to wrap up its session this month, Senate proponents are hoping their broader version is accepted by the Republican-controlled House.

Trump congratulated the Senate on passing the bill and said he looked forward to signing it into law.

“This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved,” Trump tweeted.

The United States leads the world in prison population, with about 2.2 million people incarcerated at the end of 2016.

During Senate debate of the bill, Democratic Senator Dick Durbin noted the United States had 5 percent of the world’s population, but 25 percent of the world’s prisoners.

He added that minorities bore the brunt of tough minimum sentences that judges have been directed to impose as a result of a decades-old law that has exploded the numbers of incarcerated people.

“The majority of illegal drug users and dealers in America are white. But three-quarters of the people serving time in prison for drug offenses are African-American or Latino,” Durbin said.

In response to criticism from some conservatives that the legislation could prompt the release of violent criminals into society, the bipartisan measure was reworked to scale back the discretion judges would have in some sentencing cases.

Before passing the bill, the Senate defeated amendments by Republican Senators Tom Cotton and John Kennedy that would have further tightened requirements.

Those amendments would have excluded child molesters and other violent felons from early release, required notification of victims before offenders are let out of prison early and included a plan to track the effectiveness of anti-recidivism programs.

The push for the legislation gained momentum as progressive Democrats were joined by fiscal conservatives, who saw the potential for savings if the U.S. prison population was reduced, along with religious conservatives who preached the importance of giving people a second chance.

(Reporting by Richard Cowan; Additional reporting by Eric Beech; Editing by Peter Cooney)