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A ‘First Step’ gives federal offenders chance at a fresh start

March 20, 2019

In a rare show of bipartisanship, federal sentencing reform has been enacted that advocates say is a positive step toward reducing mandatory minimums and allowing low-level offenders to go free.

The Formerly Incarcerated Reenter Society Transformed Safely Transition Every Person — or FIRST STEP — Act was signed into law on Dec. 21. The legislation has several provisions, including some that reduce drug sentences and make prior sentencing reforms retroactive.

Already in the Southern District of Indiana, some 15 offenders have been released from federal prison pursuant to the First Step Act, and another 15 to 20 releases are expected soon. Though Northern District judges have not yet reduced any sentences under the act, federal defender Jerry Flynn expects reductions and releases to begin in his district soon.

True to its name, federal defenders say the First Step Act is just that — a first step. Sentencing reform advocates say they would still like to see additional revisions to laws regarding drug and firearm sentences and re-entry services available to offenders. But after eight years without comprehensive sentencing reform legislation, advocates say they are pleased Congress has begun revisiting the issue.

Retroactive relief

One of the early effects of the First Step Act has been the release of offenders incarcerated for crack cocaine. According to Sara Varner, first assistant federal defender for Indiana Federal Community Defenders in the Southern District, the War on Drugs led to a 100:1 sentencing ratio between crack and powder cocaine. Crack cocaine offenses were sentenced much more harshly, Varner said, often disproportionately targeting black men.

The Fair Sentencing Act of 2010 reduced that disparity to an 18:1 ratio, said Kara Gotsch, director of strategic initiatives at The Sentencing Project. Even so, the sentencing reforms in the Fair Sentencing Act were not retroactive, Gotsch said, so offenders who were already incarcerated in 2010 could not benefit.

But the First Step Act makes the crack reforms retroactive, which has already led to an early release of prisoners nationwide, Gotsch said. In Rhode Island, for example — which has a population of only roughly 1 million — 14 crack cocaine offenders have been released.

The roughly 15 prisoners released in the Indiana Southern District also were incarcerated for crack offenses, Varner said, and the next wave of roughly 20 releases will follow. In the Northern District, Flynn said crack offenders will be among the first to be released.

Government collaboration

In Indiana’s Southern District, the offenders released so far obtained sentence reductions through collaborative agreements between Varner and the Southern District United States Attorney’s Office. According to Bob Wood, appellate chief in the USAO, Varner provides a list of defendants whom she believes are eligible for sentencing relief, and government attorneys review the list to determine eligibility on their end.

Several factors are considered when determining eligibility, Wood said. What is the quantity of cocaine associated with their charge? Have they previously been granted relief under the act? Have they received a sentence commutation? All of these questions are considered in light of federal guidelines, Wood said.

Minkler Minkler

From a prosecutorial perspective, Southern District U.S. Attorney Josh Minkler said the question his office asks is not, “Do we want this person to be released?” Instead, the USAO must ask, “Is this person eligible for sentencing relief?” If so, Minkler said it’s his job to carry out the law. That applies not just to crack offenses, he said, but also to other drug and firearm sentencing revisions included in the act.

In the Northern District, Flynn said he’s seen no indication that either the U.S. Attorney’s Office or the district judges will be opposed to granting sentencing relief under the First Step Act. In a statement to Indiana Lawyer, Northern District Attorney Thomas Kirsch II said his office will be willing to discuss the merits for relief in individual cases and agree to sentence reductions if the facts warrant relief. If an agreement can’t be reached, Kirsch said litigation would have to ensue.

Southern District prosecutors and defenders have largely been able to agree on all defendants they’ve considered, Wood said, though there are some cases that will have to go to litigation. Those cases involve disagreements over how the law should be applied, he said.

Flynn noted judicial officers have discretion over whether an offender is entitled to sentencing relief. Northern District judges have already asked the probation office to provide offenders’ conduct reports, he said, so it’s possible an inmate with a bad behavioral record might not have a sentence reduced.

One legal question that will have to be answered is whether the First Step Act entitles eligible offenders to a full resentencing hearing, an issue Flynn said prosecutors and judges may not support. Even if a full rehearing is warranted, the federal defender noted such a rehearing could be a double-edged sword — offenders with a good prison record might be granted relief, while those with a bad record might not.

More services?

The First Step Act also includes humanitarian provisions, including programs to allow offenders to earn credit time and enter community corrections or home confinement, and a ban on shackling pregnant women. While those programs are beneficial, Gotsch said little has been done to implement such reforms since the act became law.

For example, Gotsch said there’s no evidence incarcerated pregnant women have been informed of the new shackling policy. There also hasn’t been any new guidance on elderly release programs, she said, another provision of the act.

Further, the legislation required the Department of Justice to create an Independent Review Commission within 30 days of the law’s enactment. The commission would be charged with creating a risk and needs assessment tool, but more than three months after the law was signed, the commission does not yet exist, Gotsch said.

The First Step Act allocates $75 million for re-entry services, but Gotsch said that amount is only a drop in the bucket in light of the Bureau of Prison’s existing funding deficit. The BOP declined an interview about its programming.

Minkler praised the act’s re-entry provisions, adding that recidivism is a public safety concern his office takes seriously. Additional programming to ease offenders’ re-entry can help ensure they don’t reoffend and put society at risk, he said.

Additional steps

In addition to offering additional re-entry services, the sentencing reform advocates say there are other sentence-specific reforms they hope Congress will soon address.

From a drug perspective, Gotsch said she would like judges to have more discretion over drug sentences, opining that an offender’s role in a drug scheme, versus the quantity of drugs they are found with, should be a more prevalent sentencing factor.

Another issue is firearm-related mandatory minimums under 18 U.S.C. 924(c). Flynn said the First Step Act prohibits “stacking” under 924(c) for first-time offenders, but Varner noted that provision is not retroactive.

Overall, Gotsch and the defenders say they’re hoping for more retroactivity that will allow more offenders to be released.

“One of the funnest parts of my job is getting to make those phone calls,” Varner said. “‘Get ready — you’re coming home.’”•

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