Conversations With Those Helped by Passage of First Step Act: Provides Relief for Some Federal Prisoners, but More Is Needed
by Chad Marks
December 21, 2018, changed the lives of many federal prisoners in facilities throughout the United States. That’s when President Trump signed the bipartisan First Step Act into law, making many federal prisoners eligible for release sooner than expected.
Trump invited two unlikely guests to his State of the Union address: Matthew Charles, the first person to benefit from the enactment of the First Step Act, and Alice Johnson, a grandmother in her sixties who served over 20 years in federal prison until Trump granted her clemency on a life sentence for a nonviolent drug offense.
Matthew Charles had served 21 years in prison on a 35-year sentence related to his involvement in a crack-cocaine offense. In 2016, a federal judge released him from prison under the belief that a new drug sentencing law applied to him. Following his release, Charles got off to a successful reentry. He obtained employment, volunteered at the Little Pantry That Could in Nashville Tennessee, and reconnected with family. By all accounts, he was an example of what a successful reentry is meant to be, but it would be short-lived.
Prosecutors appealed the judge’s decision to release Charles, arguing that the judge erred in applying the new drug sentencing law to him. A year and half later, Charles’ taste of life, liberty, and the pursuit of happiness would be stripped from him when an appeals court ordered him back to prison. His case caught the President’s eye.
This is when Matthew Charles’ case became a beacon for reform and a face for why the First Step Act should be passed. Part of that legislation aimed to make the Fair Sentencing Act of 2010 retroactive. If passed, there would be no mistake this time—it would apply to Charles. That law in 2010 increased the triggering amount of crack for a five-year mandatory-minimum sentence for possession of 5 grams to 28 grams, and for a 10-year mandatory minimum sentence from 50 grams to 280 grams. The change reduced the infamous 100-1 ratio that triggered the mandatory minimums to an 18-1 ratio.
When the First Step Act was signed into law, it lessened the shameful, racially discriminatory disparity between punishments for offenses involving crack cocaine and powder cocaine that disproportionately affects African-Americans.
On January 3, 2019, the Government agreed that Charles should be released based on this new legislation, and he was able to reclaim his life once again.
Undoubtedly, there are many more like Matthew Charles throughout the federal prison system, both men and women, who are now able to be reunited with their families based on the First Step Act making the Fair Sentencing Act retroactive.
I was able to interview two men, who are eligible for immediate release from prison because of the Act. One of them is Troy Powell, who was convicted of conspiracy to distribute 114 grams of crack cocaine and was sentenced in 2004, at age 25, to a term of 20 years. The other is Simernon Rogers, who was sentenced in 2006 to 157 months in federal prison for a crack cocaine offense.
Here is my interview of both men:
Marks: Hello, Troy. Can you tell me where you are from and why you’re in federal prison?
Powell: I am from North Carolina, and when I was 25 years old, I was arrested for my involvement in a crack cocaine case that involved 114 grams of crack.
Marks: How much time were you sentenced to?
Powell: I was sentenced to 240 months; the feds use months, but it is 20 years.
Marks: At the time that you were sentenced, how did you feel?
Powell: Well, I was only 25 or 26 years old when I got sentenced, and that was about the same time I had been alive. It was hard to even process that reality. I was sick; I had no idea what I was going to do. I was heartbroken; I did not know if I could do 20 years. It was like my life flashed before me.
Marks: During your time in prison, did you think that the laws were going to change?
Powell: Not really. But in 2010 when lawmakers started talking about changing the crack law, everyone in prison was talking about it, and I got real happy about that. In my mind, it was going to change, and I was going to benefit from it. But then when they changed it, I found it did not apply to people in prison already. I felt the same way I felt when I got sentenced. It hurt about the same inside.
Marks: Congress changed the law but did not make it retroactive, correct?
Powell: Yah, and it just made me sad for real. I could not believe that they could change the law, say it was wrong but not fix it for everyone. It just did not make sense to me. Every time the law changed with the two points and the drugs minus two change, none of that applied to me.
Marks: Why was that?
Powell: Because I had an 851 Enhancement [21 U.S.C. § 851] that made my mandatory-minimum 20 years. That was for a prior conviction for 19 grams of marijuana.
Marks: OK, but the First Step Act fixes that, right?
Powell: Yah. Finally, something applies to me. It changes my mandatory-minimum from 20 years to 10 years, and just two days ago, my sentencing judge ordered the BOP to release me within 10 days of his order. The BOP is waiting to the last day to do it, which I think is insane. With the change, my guideline sentence would have been in the seven- or eight-year range. The mandatory minimum is still 10, though. I have all this time in, and the BOP still wants more time from me. You know, Chad, I am 42 years old, and the truth is, I am scared getting out of prison at my age after being in here so long.
Marks: What are you scared of?
Powell: Just going home and having to restart my life. I did the best I could to prepare. I completed a lot of rehabilitative programs and all of that, worked in UNICOR in the factory for years. But now things are going to get real for me walking out of here. I just want to be normal. I want a job and a place to live. Failure is not an option for me. I have to go out there and make it. At my age, I can’t have kids. I am too old for that. The best years of my life are gone, so I am scared about that.
Marks: Well, I think you’re right about being scared, but you have to stay focused. You have to be determined to succeed. How do you feel about the First Step Act?
Powell: This is a good thing, but there is a lot more needed. I know this because I am in here. I see the effects of imprisonment. Don’t get me wrong — I am grateful for what Trump did. To me, he is doing more on criminal justice reform than anyone else. Obama did a little bit — he got the conversation started; he visited a federal prison. Now, Trump signed a law that helps people, and he had two people at the State of the Union. I watched that, and I don’t think any president invited two people who were in prison for over 20 years to a State of the Union. So for me, he is doing big things to help change prison and the criminal justice system.
Marks: You said more needs to be done. What do you mean by that?
Powell: Well, the first thing is, this should not be like the Fair Sentencing Act, saying some laws are wrong, but they only apply to people who get arrested now. If the law is wrong, then it is wrong. The First Step Act says that nonviolent drug dealers cannot get life anymore, and that life changes to 25 years. But that part is not retroactive. How is that? I know how bad that hurts because it happened to me in 2010. I have a guy here I know, James Romans, who was sentenced to life for marijuana as a nonviolent offender. President Trump has the power to fix that—the 924 (c) [18 U.S.C. § 924(c)] everyone has been talking about, the stacking law since I been in prison. They changed it with the First Step Act, but it does not apply to guys in here now. The same thing with the 851 Enhancement that went from 20 years to 15 years. If something is wrong, it is wrong for everyone.
Marks: Point well taken. I want to thank you for sitting with me. Is there anything else you would like to say before we finish?
Powell: Yah. I just want to thank President Trump for what he did and people like Amy Povah at the CAN-DO Foundation and people like Shon Hopwood for advocating for all of us. People like him and the lady Alice and Matthew Charles are the reason why people deserve a second chance to get out of these places. People like Van Jones, too. I want to thank him for all he is doing and the CUT50 organization that he is a part of.
On February 22, 2019, Troy Powell was released from the Federal Medical Center Lexington in Kentucky after serving nearly two decades in prison for his involvement in a nonviolent crack cocaine conspiracy case.
My interview with Simernon Rogers was conducted the same day that Troy Powell was released from prison.
Marks: Hello, Mr. Rogers, how are you today?
Rogers: I am in the best sprits because I am getting ready to be released from prison based on the First Step Act.
Marks: Can you tell the readers what you’re in prison for and what your sentence is?
Rogers: Sure. In 2006, I was sentenced to 157 months in prison for selling crack.
Marks: Was there any violence in the case?
Rogers: No, none at all.
Marks: So, the First Step Act helps you, correct?
Rogers: Yes, it does. The Federal Defenders Office says my immediate release should be any day now.
Marks: When President Trump was elected, did you think you would see any criminal justice reform during his administration?
Rogers: Well, not with Jeff Sessions as the attorney general, but once he got rid of him, I figured that he would have to do something to bring in African-American voters. He was lifting the unemployment rate for us, but too many black men and woman are in prison under horrible sentences. The crime don’t fit the time, and Trump knows that.
Marks: What do you think about the First Step Act?
Rogers: It is a step in the right direction, and I think more is coming.
Marks: What would you like to see the next step be?
Rogers: I would like to see parole brought back. I think that is the best reform. If you had some intelligent people not bent on hatred or racism reviewing people, and what they have done since they been in prison and making decisions to release people based on what they have done to better themselves in here, then to me, that is the best reform. We spend way too much money over-incarcerating people.
Marks: What have you done during your incarceration to better yourself?
Rogers: I have done a lot of programs. The one thing that I did was complete a real culinary-arts class. I have a passion to cook. I really enjoy that, and that is what I want to do when I walk out of here. Prison is not an option for me ever again. I don’t mind struggling as long as I can provide for my family, and I know I cannot provide for them from prison.
Marks: In 2010, the Fair Sentencing Act was passed but was not retroactive. How did that make you feel?
Rogers: It had to be the biggest disappointment of my life for real. I came in here at 30 years old. Had that been retroactive, I would have been home in my late 30s. My mind had changed by 2010 — if they let me out back then, I was not coming back to prison. They wasted tax money keeping me in prison until now. The crack law is a racist law, and everyone knows it. It took way too long to change it. Right now, they changed the law, but a lot of that law is not retroactive. So now, all these people have to wait like I did. I hope all of the law is retroactive. Parts of it say people can do rehabilitation programs to earn time off, but a lot of people are excluded from getting time off. You would think they would want everyone to have real incentives to better themselves. Promising people more commissary is not going to get it.
Marks: Thanks for taking your time to sit down with me. Is there anything else you would like to add before we finish up?
Rogers: President Trump: Black people are watching and a lot more are starting to support you. Give some of these brothers clemency that got life for nonviolent drug crimes. Before the First Step Act, some of our families would not have voted for you, but now that you did this, you gave us reason to. I know I will encourage my family to vote for you if you do a little more.
Simernon Rogers is one of the nearly 2,700 prisoners who The U.S. Sentencing Commission estimates will benefit from the First Step Act’s Fair Sentencing Act retroactivity. He is at the time of this writing waiting for an order from his sentencing judge mandating his release.
While the First Step Act will aid in reducing some of the grotesque sentences that come with the mandatory sentencing schemes, there are many more like Matthew Charles locked behind bars who deserve a second chance.
In August 2003, in a speech to the American Bar Association, Supreme Court Justice Anthony M. Kennedy said federal mandatory-minimum sentences for drug-trafficking defendants were unwise and unjust — and they should be repealed. In addition, he said United States Sentencing Guidelines ranges linked to those mandatory-minimums should be revised downward.
Since Charles has been released, he has been advocating for the creation of a mechanism for those who are serving decades behind bars to have their sentences reviewed after 15 years.
Said Charles: “Those people that are locked up with life sentences or sentences that exceed 15 years, many have been rehabilitated, but they don’t have a way to have their sentences reviewed. Fifteen years is a significant amount of time to make a change.”
In January 2106, a bipartisan group of policymakers and criminal justice experts released The Charles Colson Task Force on Federal Corrections Report. In that report, experts like Matthew Charles called for Congress to establish a second-look provision, which would enable anyone who has served more than 15 years to petition for resentencing. This would ensure that the Alice Johnsons, Matthew Charleses, and Troy Powells of this failed experiment on crime do not remain incarcerated longer than necessary.
It was President Trump who, at the State of the Union when talking about Alice Johnson, said, “Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing.” He followed that up by saying that when he commuted Alice’s sentence he knew he did the right thing. Trump solidified that position with his statement about the First Step Act when he went on to say, “This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.”
Trump was correct, and many people feel that the only thing wrong with the First Step Act is that three aspects of the reformed sentencing laws that wrongly and disproportionately harm African-American communities are not made retroactive. The President has proved that he can bring both parties together on criminal justice reform. There is no need to wait any longer on a second step that makes the change of these unjust sentencing laws retroactive.
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