gavel and justice scales

A criminal justice bill signed this month by President Donald Trump could send more crack cocaine offenders from the Richmond area home from prison early than from almost anywhere else in the country.

But the prison gates will not be swinging wide open — it appears only a limited number of such offenders will be eligible.

The First Step Act has been hailed by some as the most significant sentencing reform in a generation, and criticized by others as not going far enough to cure perceived injustices.

The act allows for early releases for the elderly and provides relief for some offenders sentenced to mandatory-minimum terms for a number of crimes — not just for crack cocaine, which has disproportionately affected African-Americans.

Carl Tobias, a professor at the University of Richmond School of Law, said he believes the legislation was a compromise. “But I think there are some important provisions in there — especially for crack convictions applying retroactively.”

Tobias said he has seen estimates of 2,600 or more current crack cocaine offenders across the country who could ask for new terms. “My guess is the Eastern District [of Virginia] might have been pretty tough in those situations. ... I think there could be a significant number.”

Robert J. Wagner, a longtime federal public defender in Richmond, says it is absolutely the case that sentencing in crack cases here has been tough. But it appears that if there are relatively more crack cocaine offenders from here who are eligible than from most places elsewhere, it may not be a large number.

“For about 15 years, we were prosecuting more crack cases than any other jurisdiction in the country,” said Wagner, of the Richmond Division of the Eastern District of Virginia. “I would think we would have far more crack defendants who would be eligible for relief under the First Step Act” than most other jurisdictions, he said.

However, Wagner said, “we’re going through all of our cases to see who is eligible and we’re finding a few names, but not as many as we thought we might.”

The only offenders who will be eligible are those who are still behind bars, were sentenced before 2010, and whose cases involved amounts of cocaine that no longer call for five- or 10-year mandatory minimum sentences, Wagner said.

The Richmond Division, where Wagner works, is part of the Eastern District of Virginia, one of 94 federal districts in the U.S.; it encompasses the heavily populated areas of Northern Virginia, Richmond and Hampton Roads.

The district has been among the leaders in crack cocaine prosecutions for decades, in part because of the crack-related murder toll in Richmond during the 1980s and 1990s. Richmond led the nation in per-capita homicides in 1994, with 161.

Because of the violence associated with the trade, Congress enacted much tougher penalties for crack cocaine offenders than for those convicted because of powder cocaine. The tough sentences for crack cocaine were intended to curb the violence.

Many critics complained that the crack cocaine punishments went too far, particularly when compared with the lesser terms called for in powder cocaine cases. Adjustments were made by the U.S. Sentencing Commission a decade ago and in 2014, and by Congress in 2010.

The 2008 reductions have helped hundreds of prisoners sentenced in the Eastern District of Virginia to leave prison early.

According to a 2007 sentencing commission report, there were more prisoners eligible for those sentence reductions from the Eastern District of Virginia, 1,404, than in any of the other 93 federal districts in the country. Nationally, roughly 19,500 people — 86 percent of them black — who were sentenced from 1992 into 2007 appeared to be eligible for a reduced sentence.

Then in 2010, Congress passed the Fair Sentencing Act. It increased from 5 grams to 28 grams the amount of crack cocaine required to trigger a five-year mandatory-minimum sentence, and increased from 50 to 280 grams the amount required for a 10-year mandatory-minimum sentence.

But the 2010 changes did not apply to individuals already sentenced under the old law. The First Step Act makes the 2010 changes apply retroactively.

“We’ve already identified one guy who is eligible so we’ll be filing on his behalf,” Wagner said. That case involved 110 grams of crack cocaine and the offender still has about two years to serve.

Wagner said his office will petition the court for a lower sentence under the federal sentencing guidelines that now apply, because the mandatory-minimum term no longer does under the First Step Act. A sentence within the guideline range in that case is believed to be five to six years and, if his petition is approved by the judge, the inmate would be released immediately because he has already served the time, Wagner said.

The U.S. Attorney’s Office will have a chance to weigh in on the petitions filed in each case. Wagner said that in the past when sentence changes were warranted by the commission or by Congress, if the government does not object, the two sides submit an agreed-upon request to the court.

If the judge approves the reduction, it is sent to the federal Bureau of Prisons so the inmate can be released at the appropriate time.

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