Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act

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Sentencing / Post-Conviction

By Debra Cassens Weiss

November 8, 2019, 10:57 am CST

President Donald Trump at the 2019 Prison Reform Summit and First Step Celebration at the White House in April. Official White House Photo by Joyce N. Boghosian

The U.S. Justice Department is interpreting the First Step Act in a way that would keep more crack cocaine offenders behind bars, even as President Donald Trump touts his administration’s role in passage of the criminal-justice reform law. One section of the First Step Act allows inmates sentenced for crack cocaine to apply for retroactive application of a 2010 law that reduces the sentencing disparity between crack and cocaine offenses. More than 3,000 inmates have been released under the provision since the law was passed nearly a year ago, the Washington Post reports. But the Justice Department is arguing that sentence length should be based on the amount of crack cocaine that an offender may have actually possessed or trafficked, as indicated by court records, rather than the amount that the conviction was based upon. Federal prosecutors have made the argument in hundreds of cases, according to the Post. The Justice Department was even seeking to reincarcerate some people already released under the law, according to the article. One targeted former inmate was Gregory Allen, who appeared at a White House event in April to celebrate passage of the law. President Donald Trump called Allen to the microphone. Prosecutors had lost their bid to keep Allen behind bars and were appealing the decision at the time of the event. The department dropped their appeal about two weeks after Allen’s appearance. Justice Department spokesman Wyn Hornbuckle defended the First Step Act interpretation in an interview with the Post. He said the department’s position was justified because prosecutors in years past didn’t need to prove large amounts of drugs to obtain long prison sentences. Under today’s sentencing regime, prosecutors would likely charge the offenders with having larger drug quantities, Hornbuckle said. Judges rejected the Justice Department’s interpretation in the vast majority of cases reviewed by the Washington Post. But at least five federal judges agreed with the Justice Department and denied early release. Other judges have withheld judgment until appeals courts decide the issue. One critic of the Justice Department position is Brett Tolman, a former U.S. attorney who is an advocate for sentencing reform. He says nothing in the legislation specifically instructs courts to consider the actual amount of cocaine possessed by the defendant. “This is not a faithful implementation of this part of the First Step Act,” Tolman told the Post. But Barr is reportedly worried that early releases of inmates under the law will increase crime, according to the Post. Anonymous officials told the newspaper that Barr is concerned the administration will be blamed if crime increases.

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