The five former inmates assembled on the White House stage weren’t scheduled to speak, but President Donald 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 responsible. But cases like Allen’s expose a striking rift between the White House allies who supported the law and the Justice Department (DOJ) 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 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 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, 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 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 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 First Step Act in ways that “are consistent with congressional intent.”
But current and former White House officials said Barr, who was sworn in on 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 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, Florida, 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 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.
“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.
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The Washington Post’s Devlin Barrett contributed to this report.