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

[July 23, 2019] 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 – 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. (Another 3,100 are being released under a separate provision that awards time off for good conduct.)

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.

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Monae Davis poses for a portrait after an interview at a halfway house in Buffalo, New York, U.S., July 16, 2019. Picture taken July 16, 2019. REUTERS/Lindsay DeDario

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)

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