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February 26, 2008

Is AG Mukasey rightful to fear men and his former judicial colleagues?

As detailed in this CNN story, Attorney General Michael Mukasey continues to preach that his former colleagues (namely, federal district judges) cannot be trusted to make sound and safe decisions concerning which defendants get the benefit of the new federal crack guidelines.  Here are details from the CNN piece:

Attorney General Michael Mukasey on Monday urged police officers to join his effort to push Congress to prevent what he fears will be a dumping of thousands of violent criminal offenders on the streets of U.S. cities in coming weeks.....

"Nearly 80 percent of those eligible ... have a prior criminal record," Mukasey told hundreds of members of the Fraternal Order of Police. "This tells us those who are eligible for early release are very likely to commit another crime." Mukasey also said 955 of those eligible [right away] for release are male. "We believe that this statistic will help to alleviate the concern expressed by some that the eligible offenders were simply girlfriends just caught up with their boyfriends," Mukasey said....

Mukasey said he is willing to discuss with Democratic lawmakers what should be the proper ratio in crack and powder cocaine sentencing but first wants to ensure the rules are changed to sharply curtail the releases.

Members of the Congressional Black Caucus have taken the lead in pressing for greater fairness. They point to the Commission's statistic that 32 percent of the first wave of offenders who could be released have had been convicted of only one crime or none at all prior to the charge that led to their conviction. The Justice Department said that means more than two-thirds of the offenders are in a criminal history category that suggests they will commit another crime.

The subject will be explored Tuesday in a House subcommittee hearing where Democratic officials say they plan to call for lighter sentences for those convicted of crack offenses and reject the Justice Department arguments.

The AG's monday afternoon speech is available at this link, and here are key paragraphs from the text on crack sentencing:

I understand that well-intentioned people can view statistics differently. But, these statistics are important for two reasons. First, they confirm what the Department has seen in the field and what our prosecutors have experienced in court.  These offenders are often violent criminals who are likely to repeat their criminal activities. Second, these statistics – all taken from the Commission’s own study – undermine the allegations that there are great numbers of one-time crack users who were simply caught in the wrong place and the wrong time. Furthermore, the Department has suggested a way to address that concern: Congress should limit the retroactivity so that only first time, non-violent offenders could have their sentences reduced, and the amount of the reduction could not surpass the two-levels allowed by the Commission. This would address the Department’s public safety concern and allow any non-violent offenders to be released early, and permit those who need it to get the benefit of the Bureau of Prisons’ pre-release programs that help prevent or at least diminish the incidence of recidivism.

With respect to the crack-powder sentencing ratio itself, the Department has acknowledged that honest men and women can disagree about what the appropriate sentences should be for these crimes, and how they should differ from sentences for other drug crimes. The Department is committed to being a part of those discussions and to helping develop fair and just punishment for crimes committed in the future. But we believe that any reforms in the area of crack sentences have to satisfy two important conditions: First, any reforms should come from Congress, not the Sentencing Commission; and second, reforms should not be applied retroactively.

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February 26, 2008 at 09:34 AM | Permalink

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Comments

This is all quite silly. He knows (and everyone else knows) that the District Courts must make individualized determinations. He knows that his people can, do, and should make valid legal arguments as to why people shouldn’t be released.

But, he is a lame duck AG. He has a fairly small term. He has a fairly hostile Congress. He isn’t an insider in this administration. So, most of what he says to Congress needs to be taken with a grain of salt.

Posted by: S.cotus | Feb 26, 2008 12:35:47 PM

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