DOJ interprets “First Step” narrowly

The Washington Post reports that the Justice Department is limiting the impact of the First Step Act, the jail break legislation passed by Congress with President Trump’s support and signed into law by the president. The DOJ argues that when drug dealers apply for early release pursuant to First Step’s retroactive reduction in sentences based on the amount of crack they dealt, the test should be how much crack they were handling, as demonstrated by court records, not how much they were convicted of dealing.

The rationale is that, had First Step’s lenient sentencing regime been in effect at the time of conviction, the government would have shown that some defendants were handling more crack than the amount reflected in the conviction. For example, one crack dealer who has been released admitted in his plea deal to handling between 1.5 kilograms and 4.5 kilograms. Even under First Step, that amount is too high to qualify for a sentence reduction.

Had First Step been in effect, the government would have convicted this guy of trafficking in the larger amount. Because First Step wasn’t in effect, the government had no need to do so. It strikes me as ridiculous, unjust, and detrimental to society that this drug trafficker, who reportedly oversaw a network that sold crack and cocaine across western New York and Pennsylvania, was released early.

President Trump has the power, of course, to stop the Justice Department from advancing its current position. I assume the Washington Post’s article is an attempt to induce such action by Trump.

If the DOJ’s position is an incorrect reading of First Step, Trump should put a halt to it. However, he shouldn’t force the DOJ to change its position just because the jail break crowd, including his son-in-law, doesn’t agree with it.

The DOJ has put its finger on a major problem with applying First Step retroactively. As discussed above, some drug dealers who, had the new sentencing regime been in place when they were convicted would have received the same sentence they got, will serve less time because of retroactivity.

It is unrealistic to assume that, had First Step been in place back then, everything else in the treatment of a particular defendant would have played out exactly as it did. When this assumption leads to the early release of felons who, as a class, have high rates of recidivism, it is not just unrealistic — it’s dangerous to society.

Did Congress legislate this result? Did Congress legislate against it? Is the statutory language ambiguous? Did Congress give it any thought? The answer to the last question is probably “no.”

However, it’s the first three questions that matter. As things stand now, it is up to the courts to work this out. So far, they are divided on the matter.

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