Eastern District Judge Frederic Block, who is 90 years old, has published his fourth book: “A Second Chance: A Federal Judge Decides Who Deserves It,” The New Press, 2024. Each of his books is drawn from his experience as a federal district judge. I met with him to talk about “A Second Chance,” published in September 2024. The book focuses on the First Step Act, enacted in 2018. As explained below, The First Step Act, 18 U.S.C. § 3582(c)(1)(A), was a bipartisan sentencing reform bill signed by President Donald J. Trump during his first term. One of the provisions of the Act, and the most important according to Judge Block, allows federal district judges “to reconsider the appropriateness of a previously imposed sentence and to reduce that sentence” for “extraordinary and compelling” reasons. In “A Second Chance,” Judge Block focuses on some of the decisions he has made under the Act through the stories of six defendants who made motions for compassionate release. He explains the crimes committed and how and why he made the decisions he did to grant or deny relief.
The book is divided into four sections. In the first he introduces the reader to the six defendants and the crimes they committed. In the second section he describes The First Step Act, detailing its sections. Third, Judge Block lays out his decisions on the defendants’ motions for compassionate release. In the fourth section, Judge Block focuses on the status of compassionate release efforts in various states.
Judge Block said that he wrote about The First Step Act because he considers it an extraordinary opportunity for both defendants and judges. The intention is to provide an avenue for relief for extraordinary prisoners. But the Act also provides an opportunity for judges to revisit sentences in light of the circumstances of the prisoners, changes in the law and changes in their own approaches to sentencing. Judge Block noted that the provision of the Act allowing prisoners to make motions directly to district judges for compassionate relief, rather than relying on the Bureau of Prisons to make the motions on behalf of defendants, was an enormous game changer. Before the Act was passed, the Bureau of Prisons seldom made such motions. Since passage of the Act, over 5,300 compassionate relief motions have been granted. Judge Block wrote “A Second Chance” to provide information on how he decided the motions before him so that defendants and their lawyers would have a realistic sense of what judges are looking for.
THE FIRST STEP ACT
As Judge Block explains in “A Second Chance,” President Trump signed the First Step Act on December 21, 2018. At the time it was clear that he signed this significant sentencing reform act, which had huge bipartisan support, to increase support among Black voters. “A Second Chance,” at pp. 83-84. The first section of the bill “focuses on the need for rehabilitation in order to reduce our recidivism rate . . . ,” with employment as the key. Id. at pp. 89-90. It follows with sections allowing “federal correctional officers to carry concealed firearms on Bureau of Prison premises, and a section limiting the use of restraints on federal prisoners who are pregnant or in postpartum recovery.” Id. at p. 90.
The next section makes small changes to Congress’s mandatory minimum sentences. The mandatory minimums for four categories of crimes – drug trafficking, pornography/prostitution, sexual abuse and firearms – have been the cause of many long sentences. Id. at pp. 90-91. Judge Block notes that charging decisions by the U.S. Attorney’s Office as to whether a defendant will be charged with a crime carrying a mandatory minimum sentence lie within prosecutorial discretion. Many federal district judges oppose congressionally imposed mandatory minimums because they deprive the judges of discretion in sentencing. The next part of the Act “authorizes some new educational programs in prisons, jails, and juvenile facilities, but repeals funding for drug treatment alternatives to incarceration.” Id. at p. 94. This provision undermines programs, such as the one in the Eastern District of New York, that have established successful drug-related programs that facilitate diversion and rehabilitation for drug users. The Act additionally requires “the Bureau of Prisons to report on its capacity to treat heroin and opioid abuse, to establish pilot programs on youth mentorship, and to collect more data.” Id.
Most importantly, for judges and defendants, Section 603 of the Act gives district judges the power to reduce a prisoner’s sentence by allowing prisoners to make applications directly to the district court. Now, prisoners do not have to depend on the Bureau of Prisons to make the applications for compassionate release. Prior to passage of the Act, only about two dozen defendants received compassionate relief per year. As noted above, over 5,300 compassionate relief motions have been granted under the Act. To provide relief, a district judge must first determine that “extraordinary and compelling circumstances” exist. If they do, the judge must then consider the Section 3553(a) factors: “the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; the need to deter criminal conduct; the need to protect the public from the defendant; the need to provide the defendant with necessary rehabilitation; and the need to avoid unwarranted sentencing disparities.” Id. at p. 95.
Congress did not identify what would constitute “extraordinary and compelling” circumstances. However, rehabilitation alone does not satisfy the requirements. The Sentencing Commission had previously provided some guidelines for determining “extraordinary and compelling” circumstances. In 2007 it provided three definitions of “extraordinary and compelling” circumstances: “a defendant is suffering from a terminal illness, a defendant is experiencing significant decline related to the aging process that makes it impossible to care for him- or herself within a prison, or the defendant’s only family member capable of caring for the defendant’s minor child has died or become incapacitated.” It also added a catchall clause allowing the Bureau of Prisons (and now the courts) to find “extraordinary and compelling” circumstances other than for reasons described in the Guidelines. Id. at p. 96-97. In 2016, the Commission provided additional guidance for an “aged-based” category that would apply if the defendant was 65 or older, suffering a deterioration in health because of age and has served the lesser of ten years or 75% of his or her term of imprisonment.
Judge Block noted that the law interpreting the First Step Act was developing on a case-by-case basis. Under Second Circuit law, judges have the same broad discretion that they have in all sentencing matters with the only restriction that the decision may not be based only on rehabilitation. The governing case in the Second Circuit is United States v. Brooker, 976 F.3d 228 (2020). “Brooker concludes that it’s appropriate to consider a defendant’s extensive rehabilitation while in prison, coupled with the length of the sentence, in assessing whether the requisite ‘extraordinary and compelling’ bar has been met, and adds that ‘these arguments may also interact with the present coronavirus pandemic, which courts around the country, including in this district, have used as justification for granting some sentence reductions.’” “A Second Chance,” at p. 99.
WRITING A SECOND CHANCE
Judge Block told me that the title of the book “A Second Chance” applies to both defendants and judges. The First Step Act allows defendants to make compassionate relief motions directly to district judges, resulting in an enormous change. Judge Block wrote the book to provide information so that defense lawyers could develop a much-needed realistic sense of what judges are looking for.
Judge Block started writing books to explain his real-life experiences in the world he lives in, and he is most comfortable writing about his experience as a judge. Judge Blook wrote “A Second Chance” in three months while he was in Greece in the summer. His wife is Greek, and they spend the summer at her house where it is too hot to go out in the middle of the day.
Before he started writing, Judge Block knew that it was difficult to get books published. Only one to two percent of over 40,000 books written every year are published. He wrote his first book – “Disrobed” – when he was 78. “Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge,” Thompson Reuters, 2012. He was encouraged to write by Norman Reimer, who was the executive director of the National Association of Criminal Defense Lawyers for 15 years. Reimer is now at Vladeck, Raskin & Clark, P.C. He invited Judge Block to participate in a program in Arizona. He told Judge Block that he was working with Westlaw to get books written by lawyers published. Judge Block started “Disrobed” after he understood it could be published. It has sold 4,000 to 5,000 copies, and Judge Block is still getting royalty checks.
As to “A Second Chance,” published by The New Press, a publisher that focuses on social justice issues, Judge Block has not yet received any sales records. There is even an Audible version read by professional actor Joe Barrett. But the book came out at the wrong time because during the 2024 presidential campaign both former President Donald J. Trump and Vice President Kamala Harris were concerned about appearing to be soft on crime; thus the media, including television, was resistant to publicizing the book because people do not want to be perceived as interested in easing up on punishment for crime. The First Step Act would not pass today when no one wants to be soft on crime. There is a general belief that people should be put into jail and not be let out.
However, Judge Block believes the book serves an important role in explaining what judges do and how and why they make decisions. There is a general sense that judges just put people in jail. Thus, he would like to see a broad distribution of “A Second Chance.” To that end, Judge Block has been busy encouraging sales of the book. He has hired a publicist to get exposure on network television. He and Justice Sonia Sotomayor are planning to do a program together at New York University Law School about Judge Block and the First Step Act. Judge Block is also planning programs at other law schools.
Judge Blook said that he spoke at a conference in Arizona organized by AZRSOL (Arizonans for Rational Sex Offense Laws) before 150 people who were relatives of people in jail. Many had never seen a federal judge before. This was an example of his ability as a judge to affect people’s lives by writing books and making speeches. People were grateful that Judge Block had come from New York to Arizona to talk to them.
APPLICATIONS FOR COMPASSIONATE RELIEF
Judge Block chose the cases he did for the book because they were good stories. A good story catches the reader’s interest. Here I will provide a brief description of the defendants and the crimes committed, but I am not going to divulge Judge Block’s decisions because they are what gives tension and anticipation to the book.
The first defendant he describes is Justin Volpe, the police officer who was sentenced in 1999 by the late Judge Eugene Nickerson to 360 months in prison for the broom handle rape of Abner Louima. In 2020, when he made the motion for compassionate release, Volpe had served 21 years and six months in prison. He was 48 years old and had a release date of January 9, 2025. He took responsibility for his actions, and the Bureau of Prisons stated that he was not a danger to the community. COVID-19 was raging when he moved for compassionate release.
Sherwin Bickett was convicted by a jury of a RICO drug distribution conspiracy and aiding and abetting one murder when he was 19-years-old. In 1992, then District Judge Reena Raggi sentenced Bickett to life. He was one of 47 defendants who sold huge quantities of drugs and committed many murders. While he was in jail, Bickett had earned his GED and completed several courses. In 2009, the late Judge Sterling Johnson refused to change the sentence because of the murder conviction and Bickett’s violations in custody. Judge Block had reduced the life sentence of a co-defendant. The leader of the gang had pled guilty and was released after 25 years.
“Joe Smith” was indicted for the receipt of child pornography and entered into a plea deal in 2018. Receipt of child pornography carries high mandatory minimum sentences in contrast to possession. Judge Block sentenced “Joe Smith” to the five-year mandatory minimum. If Judge Block had applied the U.S. Sentencing Guidelines, the range would have been higher. “Joe Smith” filed a motion for compassionate release after three months in jail, arguing that he had diabetes, which made him susceptible to COVID-19.
Anthony Russo, the first of the three Mafia defendants that Judge Block describes, was convicted by a jury of RICO activity and murder conspiracies, conspiracy to make extortionate extensions of credit and the use of a firearm during a crime of violence. In 1994, the late Judge Charles Sifton sentenced him to life. In 2023, Russo made a motion for compassionate release under the First Step Act. At the time, he was 70 years old and had been in prison for 30 years. He had accomplished an extraordinary rehabilitation, taken 40 educational courses, gotten his GED, and had steady work assignments. Letters from Bureau of Prisons staff described him as a model inmate. During COVID-19 he was under 24-hour lockdown and had no visitors for over a year.
Vittorio “Little Vic” Amuso was the boss of the Lucchese Family. He was found guilty after a jury trial of 54 counts including 45 racketeering acts, murders, generating income from narcotics, loan sharking and gambling. Judge Nickerson sentenced him to life in 1992. At the time he made the motion for compassionate release, Amuso was 88 years old, in a wheelchair, and dying; on the other hand he had committed perverse and heinous crimes and had an on-going affiliation with the Lucchese Family. He had recovered from COVID-19 twice and had experienced a long lockdown.
Judge Block quoted an investigator who described Anthony “Gaspipe” Casso as a “ruthless homicidal maniac.” “A Second Chance,” at p. 63. He committed numerous murders. He signed a cooperation agreement, breaking the oath of silence. A condition of the cooperation agreement was that he had to tell the truth. After entering into the cooperation agreement, he ordered the murder of Assistant U.S. Attorney Charles Rose and then hatched a plot to assassinate Judge Nickerson. When Judge Nickerson recused himself, the case was reassigned to Judge Block. The U.S. Attorney’s Office pulled Casso’s cooperation agreement for lying to the government, among other reasons, and Judge Block denied Casso’s motion for specific performance. The Second Circuit upheld Judge Block’s decision and Judge Block subsequently sentenced Casso to life in 1999. The FBI then reported to Judge Block that Casso had made a death threat against him. In 2020, Casso made a motion for compassionate release. He was 78 years old, wheelchair bound and had prostate cancer, heart disease, kidney disease, and had been hospitalized with COVID-19.
Judge Block interwove other issues into the narratives about the defendants because most people do not have knowledge of the criminal justice system. In connection with Volpe, Judge Block described the U.S. Sentencing Commission and Abner Louima’s use of a civil settlement with New York City to build a community center in Haiti and pay school tuition for low-income children in Haiti.
With the Birkett story, Judge Block described the history of drug use in the United States and Congressional reaction. He said that drug laws tracked periods of racism and xenophobia. For example, opium laws targeted the Chinese, marijuana laws targeted Mexicans and crack laws targeted Blacks.
In connection with the description of “Joe Smith’s” prosecution, he described the history of laws directed at pornography and the difference between prosecutions of possession versus receipt of pornography. Possession does not carry a mandatory minimum sentence while receipt, which “Joe Smith” was charged with, does.
With Russo, Judge Block talked about the Gotti case, outlined the importance of presentence reports and described conditions at the Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn, specifically in connection with Sam Bankman-Fried’s and Ghislaine Maxwell’s loud complaints about them.
Judge Block described gun control efforts in connection with the Amuso case and the effect on a sentence of using a gun while committing a crime.
Finally, in the Casso case description Judge Block talked about cooperation agreements and threats against judges.
THE JOHNSON CASE
In October 2024, after “A Second Chance” was published, Judge Block decided United States v. Johnson, No. 96 CR 932 (Oct. 16, 2024). Walter Johnson was convicted by a jury of seven crimes relating to distribution of cocaine, witness tampering, and Hobbs Act robbery. He was acquitted of five crimes including cocaine and firearm charges. Judge Block had sentenced Johnson to three mandatory and two discretionary terms of life in prison for a total of five life sentences in 1994 after considering acquitted conduct and under the Three-Strikes Statute because the government filed a felony information based on his prior convictions, which required a mandatory life sentence for each conviction. Two of the prior convictions were based on crimes committed when Johnson was 19 and 20 years old.
Judge Block granted Johnson’s motion for compassionate relief and ordered Johnson released based on extraordinary rehabilitation plus a victim statement encouraging release, Johnson’s medical condition and his mother’s medical condition, fulfilling the requirement for “rehabilitation plus.” Factors under Section 3553(a) also pointed toward release, including (1) the fact that Johnson had already served a longer sentence than he would receive today, and (2) the reduced risk of recidivism due to his age. Judge Block noted that recidivism following First Step Act compassionate release was 9.7% compared to 46.2% for all people released by the Bureau of Prisons. He also pointed out that none of the people he released under the First Step Act had become a recidivist. Judge Block also listed his consideration of acquitted conduct in the original sentencing and the size of the sentence as additional reasons underlying his decision to grant the motion.
Judge Block concluded: “Now, having been on the bench for almost thirty years, the First Step Act has given me a second chance to reconsider the sentences I imposed on Johnson 27 years ago. I will now also give him a second chance.” Johnson, slip op. 25. Judge Block pointed out that he has gained insights that only experience on the bench can bring.
CONCLUSION
Judge Block, who recently appeared on the “Morning Joe” program on MSNBC to discuss his book (available at https://www.msnbc.com/morning-joe/watch/judge-reconsiders-long-term-prison-sentences-227595845870), sees the First Step Act as an opportunity both to provide relief to prisoners who have served long sentences and who met the criteria for release, and for judges to revisit sentencing decisions and release deserving individuals. Judges evolve over time and the First Step Act provides a second chance for them as well. He hopes the book will provide a guideline for the criminal defense bar and a guide to how decisions are made on compassionate release motions.
Judge Block says the next step is to enact similar laws in the states that house 90% of this country’s prison population. Judge Block is a strong supporter of the proposed Second Look Act in New York, which would enable New York State judges to review and reconsider excessive sentences. An incarcerated person could ask the court to review a sentence if he or she had served ten years of a sentence or half of a sentence over ten years. The legislation would create a rebuttable presumption of release for people who were 25 years old or younger at the time of the commission of the crime and a rebuttable presumption of release for people over the age of 55. Although the Second Look Act has been proposed three times, it has not yet passed the New York Legislature; indeed it has not even been brought to the floor. Judge Block is puzzled as to why, because it has huge bipartisan support, but surmises it is because the legislators do not want to be perceived as “soft on crime.” California, Colorado, New Jersey, Pennsylvania, Ohio and the District of Columbia all allow prisoners to petition a state court judge for release, but the circumstances for doing so are very limited.