by Chad Marks

In December 2018, President Trump signed the bipartisan First Step Act into law. It’s the most substantial change in a generation to the tough-on-crime prison and sentencing laws that have cost taxpayers billions of dollars and destroyed countless families, sending many non-violent offenders to prison for decades under grotesque sentencing laws.

There was talk in the waning days of 2018 that this reform would not come up for a vote in the Senate. That is when President Trump stepped in, urging Senate Majority Leader Mitch McConnell (R-Kentucky) to bring the bill up for a vote. Within days, the vote was held, and with it, a historic moment in our criminal justice system took place.

The First Step Act, while not perfect, is a good initial attempt at reform. The legislation does many good things. It prevents incarcerated women in federal custody (except in certain cases) from being shackled when giving birth, expands job training directed at reducing recidivism rates among federal prisoners, and expands early-release programs, allowing some prisoners to earn earlier releases through working and rehabilitative programs, just to name a few.

One of the most important parts of the legislation is sentencing reform. There is a so called “three strikes” law that has sent many non-violent drug offenders to prison for the rest of their lives. That mandatory sentence will no longer be imposed as the First Step Act now replaces it with a 25-year sentence rather than life. Repeat offenders with only one prior conviction will face 15 years rather than the 20 years that was in place prior to the signed legislation.

Many prisoners were happy when there was talk about criminal justice reform being added to the bill as Senator Chuck Grassley (R-Iowa) pushed for it. Weeks before the legislation was approved, there were rumors floating around the federal prison system that there would be compromises to get the bill passed that would eliminate the changes in the law being retroactive for prisoners who were already serving these unduly harsh sentences that the new law addresses. With that news, some prisoners felt deflated. Some of them were prisoners like Bradley Barndt and Mike Saylor, both serving a 20-year term of imprisonment at FCI Ray Brook under the 20-year minimum based on what is called 851 enhancements.

In Barndt’s case, the judge lamented that he felt 20 years was unjust, but his hands were tied by the mandatory-minimum laws. Another prisoner who felt let down was Tyrone Hines, who has served over 20 years of a life sentence for his non-violent drug conviction. All three men have said they can only hope that with lawmakers acknowledging these laws are wrong, President Trump will push for a Second Step that will include making the changes retroactive so that they, too, can get a second chance at life.

Former federal judge John Gleeson, who as a prosecutor prosecuted mob boss John Gotti, stated in one case that this law “produces the sentencing equivalent of a two-by-four to the forehead.”

‘Stacking’ Nixed

The First Step Act also changes what was commonly referred to as the “stacking law” of 18 U.S.C. § 924(c). For many years, people have been sentenced to outrageous sentences of hundreds of years under this law. In many cases, those sentences far exceeded a person’s life expectancy.

Section 924(c) serves are a triple threat. First, it provides for mandatory sentences, which by definition renders the judge powerless to determine an appropriate punishment at sentencing. Second, it results in onerous 25-year enhancements for each second or subsequent 924(c) conviction. These are not typical recidivism enhancements because the second or subsequent convictions can occur in the same trial. Third, the mandatory sentences required by 924(c) also are mandatorily consecutive to one another and to all sentences in the case. Judge John Gleeson said these sentences “would be laughable if only there weren’t real people on the receiving end of them.”

In 2011, the United States Sentencing Commission began to ask lawmakers to reform § 924(c) to blunt the harsh impact it mandates in many cases. Congress answered that call with the First Step Act by ensuring that second or subsequent 924(c) convictions resulting in additional 25-year terms for each count cannot be had in the same indictment or trial. But, much like the prior drug felony enhancements, this change does not apply to those currently incarcerated.

Fix It to Be Retroactive

I personally know the disappointment of this change not being made retroactive. Nearly 16 years ago, at age 24, I was arrested and charged with two separate 924(c) counts in the same indictment. I was eventually sentenced to a 40-year federal mandatory minimum sentence. Had this change been made retroactive, my sentence would have likely been reduced to a 15-year term. In October 2018, my sentencing judge wrote a letter to President Trump urging him to grant my request for clemency by reducing my sentence to 15 years. The judge in his letter referenced my sentence being excessive based on the 924(c) stacking law.

These parts of the sentencing reform not being retroactive from the outset is disappointing and hurtful. A second chance to reclaim my life was so close yet so very far away.

While I was hurt like many other prisoners, I had to realize two very important things: (1) the First Step Act is not just about Chad Marks and those similarly situated; it’s about the many men and women it will help in significant ways right now and (2) it is titled First Step Act for a reason. With that in mind, my disappointment has transformed into hope—for a Second Step Act.

One very positive thing that the First Step Act does do is it allows offenders sentenced before a 2010 reduction in the sentencing disparity between crack and powder cocaine to ask the sentencing judge to lower or reduce their sentences. This change could pave the way for nearly 3,000 prisoners to obtain an earlier release. This is a second chance to be fathers, mothers, sons, daughters, and law-abiding citizens. This is something that anyone in prison who understands the hardships we all face should find joy in — for those who now will get their second chance earlier.

As a federal prisoner, I have heard many gripes from other prisoners that the First Step Act does nothing for them, and therefore, it’s nothing but nonsense. I simply tell them to see the glass as half full rather than half empty. I am hopeful that this law is just a glimpse of what is to come, and in my opinion, it is not nonsense—it’s hope.  In life, we all know that every journey begins with a first step; a second step would be impossible absent the first one. That is just a basic concept in life that we cannot forget.

Digesting the fact that the Sentencing Reform was not retroactive with respect to most of the sentencing changes was not an easy thing to do, and I acknowledge that. But I also recognize that lawmakers have said that these laws are unjust, and in doing so, I believe it is only a matter of time before they are.

What I see with the First Step Act is that the criminal justice reform debate has shifted in a much more positive direction. When the Senate voted to pass the legislation, it was President Trump who tweeted that the law would, “keep our communities safer, and provide hope and a second chance.” It is our job as prisoners and former prisoners to help change society’s perception of prisoners, prison, and our criminal justice system. We can do that by doing everything we can to show that we all deserve a second chance.

We must become the change we seek.

For me, the First Step Act is a reason for prisoners to be rejoicing because change has begun. There was talk of a Second Step before the First Step Act even passed, and there also has been talk of clemency reform. My advice to everyone is do not count further retroactive reforms out or President Trump. If you do, I think he is going to surprise you. 

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Chad Marks is a staff writer for Criminal Legal News and Prison Legal News. The views and opinions expressed in this article are his own and do not necessarily reflect those of CLN and PLN.

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