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President Donald Trump is awarded the Bipartisan Justice Award by Matthew Charles, right, one of the first prisoners released by the First Step Act, during the "2019 Second Step Presidential Justice Forum" at Benedict College, Friday, Oct. 25, 2019, in Columbia, S.C. (AP Photo/Evan Vucci)
President Donald Trump is awarded the Bipartisan Justice Award by Matthew Charles, right, one of the first prisoners released by the First Step Act, during the "2019 Second Step Presidential Justice Forum" at Benedict College, Friday, Oct. 25, 2019, in Columbia, S.C. (AP Photo/Evan Vucci) (Evan Vucci/AP)

At a sentencing hearing this month, Lamont Gaines, a criminal defendant I represent, benefited from a provision in the First Step Act, the Trump administration's criminal justice reform legislation. Because the provision does not apply retroactively, Mr. Gaines’s co-defendants, who were sentenced before Congress passed the law, cannot benefit from it. Prosecutors argued that the difference was unfair. They were right.

A central provision of the First Step Act substantially reduces the severe mandatory minimums imposed under section 924(c) of the federal criminal code, which prohibits using a firearm in connection with a “crime of violence,” such as carjacking. But this important sentencing reform legislation is not retroactive.

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Mr. Gaines’s case shows why this matters. In 2017, federal prosecutors in Virginia charged four defendants with participating in a string of armed robberies and carjackings throughout the Washington metropolitan area. Three of the defendants confessed. Each one pleaded guilty to two 924(c) counts, and collectively they admitted to robbing six local commercial establishments at gunpoint. Each of these defendants was sentenced, before the First Step Act became law, to 32 years in prison, the mandatory minimum sentence then in effect on those counts.

The fourth defendant, Mr. Gaines, exercised his constitutional right to a jury trial. The jury ultimately convicted him on 12 counts, including four 924(c) counts, and acquitted him on six other counts. At the time of his conviction, Mr. Gaines was 28 years old and faced a mandatory minimum of 82 years in prison on the 924(c) counts alone, the equivalent of a life sentence.

The U.S. District Court judge in the case, T.S. Ellis III, was reluctant to impose this irrational, yet seemingly mandatory, sentence on Mr. Gaines. Instead, over the prosecution’s objection, he appointed me to represent Mr. Gaines pro bono and evaluate whether there was any legal principle that could allow him not to impose the mandatory minimum.

With my co-counsel, I filed briefs on Mr. Gaines’s behalf. Prosecutors continued to advocate for 82 years. Judge Ellis postponed the sentencing while two related cases made their way through the appellate courts. Then, like magic, Congress passed the First Step Act: Overnight, Mr. Gaines’s mandatory minimum fell from 82 to 28 years.

In passing the legislation, Congress recognized that the medieval sentences mandated by 924(c) should not stand. But, because the First Step Act is not retroactive, Mr. Gaines’s co-defendants are stuck with their 32-year sentences, instead of the 14-year sentences they would have received under the new law.

Earlier this month, Judge Ellis sentenced Mr. Gaines to 29 years and eight months on his 12 convictions, including the 924(c)s. Prosecutors argued that Mr. Gaines should receive more than 35 years in prison, in part because his co-defendants “had the misfortune of being sentenced before the First Step Act became law.” In other words, they contended, sentencing Mr. Gaines to less than 32 years would be unfair to his co-defendants.

Judge Ellis flatly rejected that position. “That unfairness is created by Congress,” he said. “Congress can remedy it.” He was exactly right. As I argued in court, the unfairness in sentencing Mr. Gaines to less than 32 years would not have been that Mr. Gaines’s sentence was too low, but that his co-defendants’ sentences were too high.

Congress is generally reluctant to make sentencing reform legislation retroactive, in part to avoid an immediate release of affected prisoners. For example, the Obama administration's most important sentencing reform achievement, the Fair Sentencing Act, dramatically reduced the disparity in sentencing between crack cocaine and powder cocaine offenses. But the legislation only applied to future cases. If you were sentenced too harshly for a crack cocaine offense before the law was enacted, you were out of luck for the next nine years, until, ironically, the First Step Act came along and fixed this injustice by giving retroactive application to the Fair Sentencing Act – but not to mandatory minimums imposed under section 924(c).

Congress eventually corrected its mistake with respect to the Fair Sentencing Act. It will presumably need to do the same thing one day for the First Step Act. But here’s a simpler solution for lawmakers: When you pass sentencing reform legislation, start by making it retroactive.

Daniel Suleiman (dsuleiman@cov.com) is a white collar defense and investigations partner in the law firm of Covington & Burling LLP. He served as deputy chief of staff of the justice department’s criminal division from 2012-2013.

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