DOJ lim­its im­pact of law Trump cel­e­brates

The ad­min­is­tra­tion is at cross pur­poses over early re­lease of pris­on­ers


The five for­mer in­mates as­sem­bled on the White House stage weren’t sched­uled to speak, but Pres­i­dent Trump couldn’t help him­self. “Where’s Gre­gory? Greg?” he said. “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 re­spon

sible. 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 P. Barr, ex­pressed sim­i­lar reser­va­tions be­fore his ap­point­ment.

The First Step Act aims to lessen long-stand­ing dis­par­i­ties in pun­ish­ment for non­vi­o­lent drug of­fenses in­volv­ing crack co­caine. Hav­ing five 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 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, though he de­clined to dis­cuss the depart­ment’s guid­ance to pros­e­cu­tors or to say when it was dis­sem­i­nated. 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 prob­a­bly 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,” Horn­buckle said. “This is a fair­ness is­sue.”

In the vast ma­jor­ity of cases re­viewed by The Wash­ing­ton 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. Jer­rold 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 said in a re­cent state­ment to The Post.

In Jan­uary, Barr told Con­gress he would en­act the law in ways that “are con­sis­tent with con­gres­sional in­tent,” and Horn­buckle said in a state­ment that the “timely and ef­fec­tive im­ple­men­ta­tion of the First Step Act is a pri­or­ity.”

But cur­rent and for­mer White House of­fi­cials said Barr, who was sworn in Feb. 14, has ex­pressed con­cerns that it would drive up crime num­bers and that 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 to dis­cuss in­ter­nal pol­icy de­lib­er­a­tions.

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, whose case was men­tioned in a Reuters story in July about ef­forts by some pros­e­cu­tors to clamp down on First Step Act re­lief. “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 re­jected the Justice Depart­ment’s ar­gu­ment that Allen should re­main in prison, con­clud­ing that it was con­trary to the spirit of the law. “Con­gress says what it means and means what it says, and I don’t have any au­thor­ity to fid­dle with what they’ve said,” Laz­zara said be­fore or­der­ing Allen’s re­lease, ac­cord­ing to a court tran­script.

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 in a tele­phone in­ter­view 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 — even as 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 woman freed un­der the First Step Act.

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

“When is she run­ning for of­fice, please? I want to back her,” Trump said af­ter Ban­nis­ter was fin­ished speak­ing. “We have to back her, right?”

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

A call from the pres­i­dent

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 such as Allen to ap­ply for early re­lease. The manda­tory sen­tenc­ing poli­cies those of­fend­ers faced are among the fac­tors that have led the United States 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’s op­po­si­tion trick­led down to other mem­bers of the Justice Depart­ment, some of whom en­cour­aged Re­pub­li­can sen­a­tors to op­pose the leg­is­la­tion.

“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 to dis­cuss pri­vate con­ver­sa­tions. Trump was more in­ter­ested in talk­ing about tar­iffs and im­mi­gra­tion, one of­fi­cial said.

Kim Kar­dashian 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 celebrity cou­ple con­vinced 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 changes in their states.

Mccon­nell was un­will­ing to act with­out hear­ing from Trump di­rectly. He did not trust oth­ers to speak for the pres­i­dent, aides said.

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 Trump who 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.

‘It is DOJ pol­icy’

Trump has made crim­i­nal justice re­form a chief talk­ing point in re­cent months, and sev­eral of his ad­vis­ers — in­clud­ing Kush­ner — 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 in­quiry. Last week, he beamed on­stage in Columbia, S.C., 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 O. 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, whether he should call it the Sec­ond Step Act, the mayor re­called.

Yet even as Trump toasts him­self for the leg­isla­tive vic­tory, 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. “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 Justice 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.

Sim­i­lar re­ver­sals took place in New York, where pros­e­cu­tors agreed in April that cer­tain in­mates were el­i­gi­ble — only to change their po­si­tion in May. In one case, a judge found the re­ver­sal strik­ing enough to ask what prompted it.

“I was pre­pared for that ques­tion, your honor,” re­sponded As­sis­tant U.S. At­tor­ney Lau­rie Koren­baum, ac­cord­ing to a tran­script of the hear­ing. “It is DOJ pol­icy.”

She de­clined to com­ment for this story.

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.”


As Gre­gory Allen was cel­e­brat­ing his early re­lease from prison along­side Pres­i­dent Trump at the White House on April 1, he had no idea the Justice Depart­ment was try­ing to put him back be­hind bars. He had been con­victed of traf­fick­ing crack co­caine in 2001.

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