President Joe Biden declared April Second Chance Month, sending a strong signal to the tens of thousands of men and women serving extreme sentences in our federal prisons.
But talk is cheap, and while the administration’s rhetoric is promising, second chances remain few and far between in a federal criminal system where the Department of Justice continues to thwart the administration’s goals by opposing the release of individuals who are rehabilitated and do not pose a risk to the public. Making good on his commitment to criminal justice reform requires more than rhetoric. The Biden administration’s Department of Justice must change course.
The department’s intransigence is especially evident in Washington, D.C., where Justice policies have an outsized impact, and stand in stark contrast to laws passed by local officials.
Because Washington, D.C., is not a state, the U.S. attorney’s office for the District of Columbia (overseen by the DOJ) handles prosecutions for violations of D.C. law. The District’s local government has passed laws to prioritize rehabilitation over punishment. The Second Look Amendment Act is a prime example. The legislation, which was enacted in January and became effective this week, allows people to seek early release who are serving lengthy sentences for crimes committed when they were under the age of 25.
But the U.S. attorney’s office has consistently sought to undermine and obstruct reforms.
For example, in 2016, the District passed the Incarceration Reduction Amendment Act (IRAA), which allows people serving extreme sentences for juvenile offenses to seek release after 15 years in prison. The law does not automatically release anyone, but instead gives juvenile lifers the opportunity to demonstrate to a judge that they are ready to rejoin their community.
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The DOJ routinely opposes IRAA releases, doing so in clearly meritorious cases. Among the motions opposed by the DOJ were those of Halim Flowers and Momolu Stewart, juvenile offenders who were selected by the D.C. Department of Corrections to serve as resident mentors for younger incarcerated men (and for whom release was ultimately granted despite the DOJ's initial opposition).
The District is not alone in grappling with the incongruity between the actions of federal prosecutors and the intent of our elected officials.
The First Step Act, passed in 2018 with broad, bipartisan support, was designed to address troubling evidence that the federal Bureau of Prisons had systematically obstructed the compassionate release program by failing to consider — or denying outright — people who were eligible for release. Over the course of five years, the bureau received 5,400 applications but only approved just over 300 of them, according to The Marshall Project. Cases reviewed by the criminal justice news site showed that the BOP even overruled applications recommended by wardens.
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Since the First Step Act was there has been a dramatic increase in the number of compassionate release motions that have been brought by individuals and granted by federal judges. And yet prosecutors have opposed many of these motions, often taking a very narrow view of the law even as the coronavirus pandemic has ravaged federal prisons across the country.
One example is Dwayne White, a 33-year-old father from Chicago who has served more than a decade of a 25-year mandatory minimum sentence for his last-minute agreement to participate in a now widely criticized sting operation. In his motion for release, White highlighted his good record in federal prison, strong relationship with his young daughter Diera, and the two jobs that are waiting for him in his hometown.
White’s case is a textbook example of what Biden highlighted in his proclamation: an exceedingly long sentence — mandated by draconian mandatory minimum drug laws —that is much longer than necessary and a person who is ready to make meaningful contributions to society. His sentence today likely would be much shorter because of recent changes to our drug laws. Nonetheless, prosecutors opposed White's motion, condemning him to spend nine more years locked away from his family at a cost to taxpayers of approximately $37,000 a year unless the judge finds in his favor.
The DOJ’s continued obstinance is hard to square with the administration’s expressed commitment to second chances. But there may be an opportunity for the White House to make good on its aspirations. Several federal courts have recently concluded that compassionate release motions can be granted for a wide range of reasons. And with the IRAA now in effect, hundreds more people sentenced to decades behind bars as young people have the opportunity to seek release. This will be an opportunity for the DOJ to demonstrate its commitment to second chances through action and not just rhetoric. If it doesn't, it runs the risk of being indistinguishable from the prior administration to the thousands of incarcerated men and women who are desperately seeking a second chance.
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The president must do more to transform its Second Chance Proclamation into reality. That starts with DOJ leadership at the top, and a commitment to ensuring that as a matter of policy, prosecutors agree to the release of people who are serving exceedingly long sentences and do not pose a danger to our communities.
Erica Zunkel is an associate clinical professor of law and the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School. Zunkel represents Dwayne White.
James Zeigler is the founder and executive director of The Second Look Project in Washington, D.C.
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