Pubdate: Sun, 02 Aug 2020 Source: New York Times (NY) Copyright: 2020 The New York Times Company Website: http://www.nytimes.com/ Details: http://www.mapinc.org/media/298 Author: Hailey Fuchs LAW TO CUT DRUG SENTENCES IS NO HELP FOR SOME INMATES WASHINGTON - Lazelle Maxwell, 48, is nearly 12 years into a 30-year sentence for a nonviolent crack cocaine charge, a penalty exacerbated by previous run-ins with law enforcement that led to his designation as a career offender. Three years into remission after a diagnosis of prostate cancer, Mr. Maxwell has no major disciplinary infractions on his prison record. He spends most of his days behind bars caring for an elderly, partly paralyzed inmate at a low-security federal penitentiary in Butner, N.C. More than a year and a half ago, he learned that he might be eligible for a reduction in his sentence under the First Step Act, a bipartisan bill President Trump signed in December 2018 that has been lauded as the most consequential criminal justice legislation in a generation. Mr. Maxwell sent a hopeful one-page note to the judge who sentenced him, asking for a lawyer so he could apply. The judge rejected his request. Mr. Maxwell never had a chance to plead his case. "It really just knocked all the breath out of me, for real," Mr. Maxwell said from an office in the Butner prison. He later learned that the judge, Danny C. Reeves of the Eastern District of Kentucky, rarely if ever grants motions for resentencing in First Step Act cases. By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men. Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively. As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible. But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release. "It's like the luck of the draw," said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases. "You've got people sitting in prison during a pandemic, and it's not supposed to come down to who your judge is. It's supposed to come down to the law." The simple enactment of the bill was no guarantee for inmates. This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that "nothing in this section shall be construed to require a court to reduce any sentence." The U.S. Sentencing Commission does not track rejected applications for First Step Act resentencing, so it is impossible to know how many eligible inmates have had their petitions denied. In many cases, inmates who ask to be resentenced are blatantly ineligible, often because they were not charged for a crack cocaine offense. In others, eligible inmates do not have lawyers to represent them when their requests are denied. Patrick Estell Jones, the first federal inmate to die of the coronavirus, was sentenced to 27 years in prison for a nonviolent drug charge because he lived within 1,000 feet of a junior college. Mr. Jones died this spring, a month after a judge denied his First Step application, citing his criminal history. The appeals courts have freed some inmates whose federal trial judges declined to resentence them. In the Western District of North Carolina, Brooks Tyrone Chambers applied in May 2019 to reduce his almost 22-year sentence for a crack cocaine offense after he was wrongly labeled a career offender. The district court, where four of the five judges are former prosecutors, maintained that he still qualified as a career offender and denied his application. The U.S. Court of Appeals for the Fourth Circuit issued a split ruling overturning that decision. The government, which contests the vast majority of First Step applications, decided not to appeal, and Mr. Chambers walked free in late July. In another case, the First Circuit Court of Appeals overturned a decision from a judge in New Hampshire, who found that an inmate was ineligible for the First Step Act because he had been caught with too little crack cocaine. The section of the act that governs resentencing for crack cocaine convictions is just four sentences long. It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine. Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision. Many public defenders - who handle most of these applications - in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a "godsend" for many inmates. He added that judges varied as to the importance they placed on the original offense or the inmate's behavior behind bars. "You give it to different judges, they're going to come up with different opinions," Mr. Small said. "It's frustrating." That discretion - critics would say arbitrariness - came into play in Mr. Maxwell's case. Complicating matters, the Eastern District of Kentucky is one of two districts in the country without a public defender's office, and First Step Act applicants are not guaranteed a lawyer under the law. Mr. Maxwell got a break when Shon Hopwood, a lawyer who had spent years in federal prison for armed robbery, decided to take up his case. After Judge Reeves rejected his initial request last year, Mr. Maxwell received some good news in January when the Sixth Circuit found that the judge could not construe Mr. Maxwell's letter as a motion for resentencing. He would be allowed a chance to demonstrate why he deserved to be released early. Still, despite his pleas that he be reassigned to a new judge by the circuit, Judge Reeves would be the one to reconsider his request. In June, he again rejected Mr. Maxwell's request. "While Maxwell is eligible for a sentence reduction, he is not entitled to it," Judge Reeves wrote. He ruled that because Mr. Maxwell was sentenced above his mandatory minimum, the court did not believe he deserved fewer years behind bars. He cited Mr. Maxwell's criminal record during his 20s, which included several bank robberies and a charge for fleeing from police. "The defendant's long pattern of criminal conduct exhibits a danger to the public and a lack of respect for the law," the judge wrote. Judge Reeves is one of two members of the U.S. Sentencing Commission, the agency instructed to study and develop sentencing policies for federal courts. When Mr. Maxwell was sentenced, the charge for fleeing from police was considered violent; this would not be true today. If he were sentenced in 2020, he most likely would not be considered a career offender, which would lower the recommended guidelines for his sentence. Among dozens of First Step Act cases reviewed by The New York Times, Judge Reeves also denied resentencing to crack cocaine offenders, compassionate release to vulnerable inmates, or requests for early release for "good time" served. He ruled that defendants who were sentenced after Mr. Trump signed the First Step Act into law were not eligible for some of its benefits so long as their guilty pleas were entered before the date of enactment. In at least two cases, inmates referred to him by the U.S. Sentencing Commission as "potentially eligible" for a sentence reduction were denied. "What he's really doing is thumbing his nose at Congress, who said these punishments were too harsh," said Mr. Hopwood, Mr. Maxwell's lawyer who helped develop the First Step Act. "It's not just enough to give the power back to judges to resentence because you have judges like Judge Reeves who just won't do it." Mr. Maxwell maintains that he has changed. He has taken many courses to better himself behind bars and is one shy of his associate degree - the bout of prostate cancer has put his graduation on hold while he is stationed at a medical prison. His only chance to leave prison before his 60s appears to be a grant of clemency from the president, but his application has remained pending since 2016. Mr. Trump has only granted 36 applications for clemency, most recently his longtime friend and campaign adviser Roger J. Stone Jr. Mr. Maxwell says his years behind bars have given him a sense of clarity. When he gets out, he wants to start a heating and cooling business. "I never gave myself really a chance to move forward in life," he said.