Thousands of inmates have been released or resentenced under a provision of the First Step Act that allowed sentencing-law changes to be applied retroactively. As of January, 2,387 inmates had sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the U.S. Sentencing Commission estimated were eligible. The law gives judges discretion in reducing sentences, leaving some inmates without much recourse when their applications are rejected, the New York Times reports. Activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release. “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed First Step Act resentencing cases. “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is. It’s supposed to come down to the law.”
Appeals courts have freed some inmates whose trial judges declined to resentence them. In North Carolina, Brooks Tyrone Chambers applied in 2019 to reduce his almost 22-year sentence for a crack cocaine offense after he was wrongly labeled a career offender. A judge denied his request, but the U.S. Court of Appeals for the Fourth Circuit freed him. The section of the act that governs resentencing for crack cocaine convictions is just four sentences long. It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine. Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.