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Overzealous Prosecutors Seek to Lock Up Prisoners Released Under First Step Act

by Chad Marks

In December 2018, President Trump signed the First Step Act into law. Among other reforms, the legislation reduced some of the penalties for crack cocaine offenses. For many years, there were complaints that crack cocaine sentences were overly harsh and disproportionately affected black defendants.

Since the enactment of the First Step Act, more than 1,100 prisoners have been released under the provisions lessening sentences for crack cocaine. Monae Davis, 44, benefited from the new law: Six years were shaved off his 20-year prison term. That resulted in Davis being released and reunited with his family earlier than expected.

But his freedom might be short-lived. Prosecutors in the Western District of New York, with U.S. Attorney James P. Kennedy, Jr. at the helm, are trying to appeal his release.

In 2009, Davis entered into a plea agreement with the federal government and admitted that he was involved with 50 grams of crack cocaine, resulting in a 20-year sentence. If arrested today, the mandatory minimum for that crime would be five years.

Prosecutors are now saying the judge erred in releasing Davis under the First Step Act, and want him back in jail. They contend that in his plea deal, Davis admitted to being involved with at least 1.5 kilograms of crack but less than 4.5 kilos. The government claims his guidelines sentence was too high to qualify for a reduction. The judge went off the indictment, which charged a specific amount of 50 grams of cocaine, and, in doing so, found the sentence reduction was applicable.

Davis had already been locked up over 10 years for his non-violent drug crime. Yet federal prosecutors apparently feel a decade in prison is not enough.

“The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” said U.S. Department of Justice (DOJ) spokesman Wyn Hornbuckle. “This is a fairness issue.”

U.S. Attorney Kennedy added that asking for appellate review was “consistent with our mission of seeing to it that justice is done in each case.”

However, sending men and women to prison for decades for non-violent crimes isn’t justice, and lawmakers and the public seem to think the same – which is why there was overwhelming support for the First Step Act.

The law was a belated recognition that tough-on-crime policies that mandated extreme sentences which largely affected black defendants were inherently unjust. There is an inscription on the walls of the DOJ’s building in Washington, D.C. – the place that employs Kennedy – which states, “The United States wins its point whenever justice is done its citizens in the courts.”

After all, our criminal justice system is ultimately supposed to be about justice. There seems to be little justice in sending Monae Davis back to prison, but that is exactly what the government wants to do.

“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.”

Federal prisoner Gregory Allen, like Davis, was released from prison under the First Step Act in February 2019. Florida prosecutors appealed his release. While the appeal was pending, Allen attended a ceremony celebrating the new law with President Trump. Two weeks later, the prosecutors dropped their appeal.

Was Allen special? Did the government realize the error of its ways? Or was it his attendance with Trump that made federal prosecutors rethink their position on what justice really is? Thus far, prosecutors have lost 73 of 81 cases in which they have tried to stop releases under the First Step Act, according to Reuters, though appeals are still pending.

Matthew Charles, the first person to benefit from the First Step Act, who also was invited to attend Trump’s State of the Union Address, had experienced this same type of injustice at the hands of overzealous prosecutors. Charles was released from prison after serving 21 years based on previous changes to drug laws. [See: PLN, Mar. 2019, p.57].

While out for two years, he began to rebuild his life. He reconnected with family, found employment and housing, established a relationship, participated with his church and began helping his community.

Prosecutors appealed his release, and were eventually successful. Charles lost his freedom and, despite all the good he had done while living an exemplary life on the outside, prosecutors made sure he was sent back to prison.

When President Trump signed the First Step Act into law, he brought real justice to Charles and other prisoners serving harsh sentences.

“I got lucky. Our justice system shouldn’t depend on luck,” Charles said. “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.”

The Department of Justice “is pushing against the will of the people, the will of Congress, the will of the president,” added Holly Harris, director of Justice Action Network.

In theory, we live in a democratic nation. The application of prosecutorial power without justice is brutal, and there is nothing democratic about brutality. Real justice is rooted in fair laws, second chances and redemption. Federal prosecutors seeking to stop prisoners from being released under the First Step Act should take note. 



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