A SPLIT OVER THE FREEING OF PRISONERS

Trump is glad that his landmark law is leading to the release of inmates. His Justice Department wants them to stay in prison

By Neena Satija, Wesley Lowery and Josh Dawsey

The Washington Post
November 24, 2019

The five former inmates assembled on the White House stage weren't scheduled to speak, but then President Donald Trump said: "Where's Gregory? Greg?

"Come on, get up here!" From behind the president, Gregory Allen saluted and then made his way to the microphone. "Two months ago I was in a prison cell, and I'm in the White House," declared Allen, a Florida resident who had been freed under Trump's signature criminal justice legislation. "That's continuing to make America great again!"

The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including Allen, who was convicted of cocaine trafficking in 2001.

The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.

The president has repeatedly pointed to the First Step Act as one of his administration's chief bipartisan achievements and one for which he is personally responsible. But cases like Allen's expose a striking rift between the White House allies who supported the law and the Justice Department officials now working to limit the number of inmates who might benefit from it.

"DOJ is pushing against the will of the people, the will of Congress, the will of the president," said Holly Harris, a conservative activist and leader of the Justice Action Network, who worked with Congress and the White House to pass the law.

Harris noted that, before the law's passage, then-Attorney General Jeff Sessions was a vocal critic of reducing prison sentences. His successor, William Barr, expressed similar reservations prior to his appointment.

The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having 5 grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.

But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have already been released under the First Step Act.

The department has told federal prosecutors that when determining whether to challenge an application for early release they should consider not the amount of crack an inmate was convicted of having or trafficking — but rather the amount that court records suggest they may have actually had, which is often much larger.

A Justice spokesman, Wyn Hornbuckle, defended that interpretation. He did not respond to questions about the split between the department and the White House allies who pushed for the law.

Hornbuckle said that in years past prosecutors could secure lengthy prison sentences without having to prove an offender had large amounts of drugs. Under today's laws, he said, those same offenders would likely be charged with crimes involving larger quantities.

"The government's position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime," rather than the amount the person was convicted of having, Hornbuckle said. "This is a fairness issue."

In the vast majority of cases reviewed by theWashington Post, judges have disagreed with the Justice Department's interpretation. Some of the people involved in writing the legislation also disagree, including Brett Tolman, a former U.S. attorney in Utah. He and other supporters of the law note that the text of the legislation does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had.

"This is not a faithful implementation of this part of the First Step Act," said Tolman, who was appointed by President George W. Bush. "At some point, they figured out a way to come back and argue that it wouldn't apply to as many people."

Rep. Jerry Nadler, D-N.Y., chairman of the House Judiciary Committee, accused the Justice Department at a congressional hearing last month of "trying to sabotage" the law by interpreting it in this way. Sen. Mike Lee of Utah, a key Republican sponsor of the law, declined to comment on the department's stance on inmate eligibility but told the Post he had concerns about how other aspects of the law are being implemented.

"It would be a shame if the people working under the president failed to implement the bill as written," Lee told the Post.

In January, Barr told Congress he would enact the First Step Act in ways that "are consistent with congressional intent."

But current and former White House officials said Barr, who was sworn in Feb. 14, has expressed concerns it would drive up crime numbers and the administration would be blamed. He also told White House officials he'd heard from many critics of the law, the officials said, speaking on the condition of anonymity.

Hornbuckle declined to comment on those accounts.

"The people that did the deal, including President Trump, wanted to help guys like me," said Allen, 49. "But on the flip side, you have federal prosecutors who wake up every day trying to keep guys like me locked up."

In February, two months before the White House ceremony, U.S. District Judge Richard Lazzara in Tampa, Florida, rejected the Justice Department's argument that Allen should remain in prison, concluding it was contrary to the spirit of the law.

Prosecutors told Lazzara they would appeal. When they noted that some judges had interpreted the law differently, Lazzara said, "I'll bet you Congress didn't really think through what was going to happen."

Indeed, at least five federal judges across the country have sided with the Justice Department in rejecting applications for early release. Others have said they will not rule on the applications until appellate courts decide how they should be handled.

The effect has been to paralyze the flow of First Step Act releases in some areas, leaving hundreds of petitioners — the vast majority of whom are black — in federal prison, defense attorneys say.

Among the stalled cases is that of Deonte Sweeney, a former construction worker serving a 22-year sentence for trafficking more than 5 grams of crack cocaine. Prosecutors have opposed Sweeney's application for early release, alleging that he had 84 grams of crack. The judge said he would not rule until he had guidance from appellate courts.

"I put my life in the jury's hands," Sweeney, 41, said from a federal prison in Pennsylvania. "So whatever amount the jury chose, that's what I should be held accountable for."

White House officials declined to comment.

Trump continues to claim credit for the bill. Just last month, the president appeared onstage in South Carolina with Tanesha Bannister, a 45-year-old South Carolina woman freed under the First Step Act.

"I want to thank the president for giving me another lease on life," Bannister told the crowd.

Unmentioned was that Justice Department prosecutors had opposed Bannister's release.

The First Step Act was championed by a bipartisan coalition that spanned the political spectrum, from the conservative megadonor Koch brothers to racial-justice activist Van Jones. The legislation forbids federal jailers from shackling pregnant inmates and grants judges new powers to free sick and elderly prisoners.

One of the most consequential parts of the law was the provision allowing federal inmates like Allen to apply for early release. The mandatory sentencing policies those offenders faced are among the factors that have led America to incarcerate more people than any other nation, experts say.

Efforts to pass similar legislation during the Obama administration failed to gain traction with congressional Republicans and were not taken up by Senate Majority Leader Mitch McConnell, R-Ky. But after Trump's election in 2016, advocates believed they had another shot.

Their hope was rooted in the president's son-in-law and senior adviser, Jared Kushner, who had expressed support for criminal justice reform and whose father spent 14 months in federal prison for crimes including tax evasion and witness tampering.

A version of the legislation made it through the House in May 2018, but the chances of a bill gaining enough Republican support in the Senate seemed a long shot — especially because Sessions opposed it.

"There are still those who would have you believe we should release the criminals early, shorten sentences for serious federal traffickers, and go soft on crime," Sessions said in a speech last year. "That would be bad for the rule of law, it would be bad for public safety, and it would be bad for the communities across America."

Advocates who lobbied on behalf of the bill said they believed that Sessions' opposition trickled down to other members of the Justice Department.

"I have no question about it that, behind the scenes, there were certain people at DOJ who seemed like they were trying to actively hurt the legislation," said Jason Pye, vice president of legislative affairs for the conservative group FreedomWorks. "The tough-on-crime mentality that existed in the 1980s and '90s is still present with some members of Congress and is still very much present inside the DOJ."

But Kushner raised the issue with his father-in-law so often that the president grew annoyed with him, according to current and former administration officials who spoke on the condition of anonymity.

KimKardashianWest and Kanye West introduced the president to the case of Alice Johnson, a grandmother who had received a life sentence for trafficking crack cocaine. Trump has said he was deeply affected by her story. The couple persuaded him to grant her clemency in June. White House aides say Trump was also swayed by lobbying from several Republican governors who had enacted similar sentencing reforms in their states.

McConnell was unwilling to act without hearing from Trump directly.

Early in December 2018, Trump called McConnell directly and asked him to give the legislation a vote in the Senate, the aides said. Trump told him that, with White House backing, McConnell's fellow Republicans would fall in line.

"Once his heart was in it, he was all in," said Ja'Ron Smith, a special assistant to Trumpwho helped shepherd the legislation. "It wasn't easy to get consensus, but the president was really pushing for this."

McConnell called a vote on Dec. 18. The legislation passed overwhelmingly, with 87 senators in favor and just 12 against. Three days later, Trump signed it.

Trump has made criminal justice reform a chief talking point in recent months, and several of his advisers believe it could play an important role in his reelection bid, said Doug Deason, a prominent donor to the Trump campaign. A senior campaign official added that the Trump campaign plans to tout the First Step Act in the hopes of attracting black voters in key states such as North Carolina and Florida.

The legislation has earned Trump goodwill from unlikely corners, something he craves amid an impeachment investigation. Last month, he beamed onstage in Columbia, South Carolina, as he was presented with an award from a bipartisan advocacy group of black elected officials.

"I told him, 'You ought to go and get that award,' " Sen. Lindsey Graham, R-S.C., said in an interview. "There ain't many people giving you an award these days."

Backstage, Trump talked up the idea of another such law, asking Steve Benjamin, the city's mayor, if he should call it the Second Step Act, the mayor recalled.

Yet defense attorneys and advocates are frustrated that the White House is not doing more to ensure that the law is implemented as intended.

"The irony of this administration working against itself is mind-boggling," said Brittany Barnett, a defense attorney who has worked on several of the First Step Act cases championed by Kardashian West. "Especially with lives on the line."

In the weeks after the bill became law, many federal prosecutors allowed inmate petitions for early release to go unchallenged. Then, at the direction of officials in Washington, prosecutors began to reverse course, court records show.

In March, Assistant U.S. Attorney Jennifer Bockhorst asked federal judges in West Virginia to place a hold on more than two dozen applications for relief — some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the department.

In a brief phone interview, Bockhorst said the government shutdown that began soon after the bill passed and lasted until late January delayed the guidance from Washington. "We didn't have the benefit of any kind of coordinated position," she said.

Some U.S. attorneys had opposed early releases from the beginning, including the prosecutors in Florida who reviewed Allen's application. They argued that although Allen pleaded guilty to a crime involving 50 grams or more of crack, evidence suggested he actually had more than 500 grams.

Lazzara was not persuaded, and on Feb. 19 he ordered that Allen be freed. Later that day he was.

The following month, Allen got a call inviting him to the White House. Neither the advocates who organized the April 1 event nor White House staff were aware that federal prosecutors had already notified the court that they would seek to reincarcerate him, organizers said.

The U.S. Attorney's Office in Florida referred requests for comment to the Justice Department, which declined to discuss Allen's case. Allen's defense attorneys declined to comment.

One federal public defender in Florida, speaking on the condition of anonymity to avoid imperiling other cases, said prosecutors eventually came to realize that they were appealing the release of a man Trump had hugged on television.

Two weeks after local newscasts led the evening news with images of Allen smiling and embracing the president, the former inmate got another phone call: The government was dropping its appeal.

Allen never received a formal explanation of why prosecutors changed course. But he gave the Post his theory: "Once they saw they gave me a presidential invite, they had to rethink things."

EDITOR’S NOTE: Trump is wrong, DOJ is right! Releasing a bunch of dope dealers and other criminals puts the public’s safety at risk.