Though the criminal justice reform bill signed into law Friday by President Donald Trump affects only prisoners charged with federal crimes, it could have an outsized effect in states like Kansas and Missouri, where repeat drug offenders are more likely to face harsh prison sentences.
The First Step Act, backed by Republicans and Democrats alike, will give prisoners access to more rehabilitation programs while in prison and make more of them eligible for halfway houses or at-home supervision. The law also makes significant changes to sentencing guidelines.
“It’s a great name — the First Step Act — we hope this is the first step,” said Laine Cardarella, who heads the federal public defender office for the Western District of Missouri.
Cardarella's office is now reviewing active cases because the law includes a provision that gives judges discretion to disregard mandatory minimum sentences in some situations. For example, she said, if a client already pleaded guilty but hasn't been sentenced, it may make sense to withdraw the guilty plea and renegotiate.
In the Missouri legislature, Republican Rep. Cody Smith of Joplin introduced a bill last year that would have granted state judges the option to similarly depart from mandatory minimum sentences. The House passed it with bipartisan support, but the bill stalled in the Senate. Smith has prefiled an identical bill for the upcoming legislative session, which starts Jan. 9.
Cardarella's office is also reviewing cases involving crack cocaine. Prisoners sentenced before 2010 for crack cocaine convictions will be able to petition to have their case reviewed. A previous federal law addressed disparities between punishments for cocaine versus crack cocaine, but under the new law, those changes become retroactive. The Marshall Project estimates 2,600 prisoners nationwide will be affected.
High rates of 'enhanced' penalties in Kansas, Missouri
Perhaps the biggest change relates to the so-called “three strike penalty.”
Previously, someone convicted of their second federal drug offense received a mandatory 20-year prison sentence. A third drug conviction led to a mandatory life sentence. Those mandatory minimums have now dropped to 15 and 25 years, respectively.
But those minimums, also known as “enhanced” penalties, don’t come automatically.
Prosecutors must choose to pursue them, and 2016 statistics from the U.S. Sentencing Commission show defendants in Kansas and Missouri are more likely to face such charges than in other states.
Out of 6,153 people who were eligible for enhanced drug sentences that year, prosecutors nationwide only pursued them in about 12 percent of cases. But in the Western District of Missouri, the total was about 17 percent, and federal prosecutors in Kansas pursued the enhancement 31 percent of the time — the 10th highest rate out of all 94 federal court districts.
Nationally, U.S. attorneys in 19 districts didn't pursue enhancement in a single case.
Melanie Morgan, a criminal defense attorney based in Kansas City, Missouri, who specializes in federal cases in both states, said it's well-known that prosecutors around here go after the enhanced sentences. Her office started getting calls in November when clients and their families heard news reports that the First Step Act could become a reality.
Now that the bill has been signed into law, she said she's working to make sure people who are eligible for reduced sentences receive them. Morgan described the previous laws as “draconian,” adding there wasn’t much benefit to the longer sentences, especially if reducing recidivism is the goal.
“If (prisoners) are going to be able to be rehabilitate you’re going to see that certainly before the 15-year mark." And, she said, recidivism rates drop sharply after age 50 anyway.
“It makes no sense for someone to continue to be in custody after they’ve served 25 years when they’re 60, 65, 70 years old,” she says. “The likelihood of recidivating is slim to none at that point in time. And of course the other side of it, there’s a tremendous cost of keeping them in custody and paying for the medical expenses associated with people as they age.”