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August 12, 2013

Some sentencing-related highlights from AG Holder's remarks today to the ABA

HolderI am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder's high-profile remarks earlier today at the Annual Meeting of the American Bar Association's House of Delegates.  Everyone should make time to read AG Holder's remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans.  Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):

In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear.  And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.

It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor; a judge; an attorney in private practice; and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.

Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities.  As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach.  And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.

Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.

It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.  It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.  And it is well past time to implement common sense changes that will foster safer communities from coast to coast.

These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago.  He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable.  And he’s also made it part of his mission to reduce the disparities in our criminal justice system.  In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias.  And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine....

Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system.  We need to keep taking steps to make sure people feel safe and secure in their homes and communities.  And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.

At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies.  Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform.  And our efforts must begin with law enforcement.

Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.

This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law.  Some issues are best handled at the state or local level.  And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.

I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners.  I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly-afflicted areas within their districts.  And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.

By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime.  By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime....

Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one.  Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met.  To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices.  And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.

As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.

As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.  More than 219,000 federal inmates are currently behind bars.  Almost half of them are serving time for drug-related crimes, and many have substance use disorders.  Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.

As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens.  Right now, unwarranted disparities are far too common.  As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.

We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers.  One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.  This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition.  And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.

In this area and many others — in ways both large and small — we, as a country, must resolve to do better.  The President and I agree that it’s time to take a pragmatic approach.  And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.

We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences — regardless of the individual conduct at issue in a particular case — reduce the discretion available to prosecutors, judges, and juries.  Because they oftentimes generate unfairly long sentences, they breed disrespect for the system.  When applied indiscriminately, they do not serve public safety.  They — and some of the enforcement priorities we have set —have had a destabilizing effect on particular communities, largely poor and of color.  And, applied inappropriately, they are ultimately counterproductive.

This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.  They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.  By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation — while making our expenditures smarter and more productive.  We’ve seen that this approach has bipartisan support in Congress — where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.  Such legislation will ultimately save our country billions of dollars while keeping us safe.  And the President and I look forward to working with members of both parties to refine and advance these proposals.

Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances — and who pose no threat to the public.  In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons.  Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.  Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community.  But considering the applications of nonviolent offenders — through a careful review process that ultimately allows judges to consider whether release is warranted — is the fair thing to do.  And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.

Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs — such as drug treatment and community service initiatives — that can serve as effective alternatives to incarceration.

Our U.S. Attorneys are leading the way in this regard — working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases.  In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system —thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate.  And it’s why the Justice Department is working — through a program called the Justice Reinvestment Initiative — to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.

In recent years, no fewer than 17 states — supported by the Department, and led by governors and legislators of both parties — have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism.  In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs.  As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years — saving more than $400 million.

In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone.  The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety.  In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated.  While our federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year.

Clearly, these strategies can work.  They’ve attracted overwhelming, bipartisan support in “red states” as well as “blue states.” And it’s past time for others to take notice.

I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country.  And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.

In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes.  I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations.  And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.

The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.

Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good.  It makes plain economic sense. It’s about who we are as a people.  And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States.  After all, whenever a recidivist crime is committed, innocent people are victimized.  Communities are less safe. Burdens on law enforcement are increased.  And already-strained resources are depleted even further.

Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quoTo do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear.  We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work.  And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.

This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.

And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system.  To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.

August 12, 2013 at 06:43 PM | Permalink

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As near as a I can tell it is fancy words that change nothing at all other than transfer prisoners from the federal system to the state system. To my mind many of the people who this proposal is trying to help would actually be better off in the federal system than in the state system because (a) the prisons are better and (b) they are likely to get a higher quality PD than at the state level.

I really can't see any positive on the ground effect this is going to have.

Posted by: just me | Aug 12, 2013 7:17:45 PM

"I really can't see any positive on the ground effect this is going to have"

I disagree. I think Holder's statement was superb, as was the directive he issued today to all U.S. Attorneys. I expect that many of my clients (as well as society) will benefit quite soon.

Posted by: Michael R. Levine | Aug 12, 2013 8:00:29 PM

"We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers. One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition. And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them."

I call BS. Holder has been caught before telling half-truths about race and the criminal justice system---in testimony he gave to Congress on the death penalty: http://www.crimeandconsequences.com/crimblog/2008/11/eric-holder-and-the-death-pena.html#more

Why should he be trusted to tell the truth now? Did that study account for differences like, for example, criminal history? Holder's word cannot be trusted for so many reasons--why is anything he says taken at face value?

Posted by: federalist | Aug 12, 2013 8:45:57 PM

LOL got to give Fed this one guys!

He's a typical politician. Mouth Open - Bull Shit at a minimum comes up! at the national lvl it's usualy

Open Mouth - LIES come out!

Posted by: rodsmith | Aug 12, 2013 9:22:43 PM

I tried to post this in an earlier thread, but for some reason Firefox seems not to be sending my comments after doing the captcha thing. I'll try again:

The new policy of not specifying drug amounts in indictments will affect defendants very little if judges do not use their newfound discretion to vary downward.

Take the following example: a defendant possesses between 100 and 400 kilograms of marijuana. If charged as 100 kilos or more of marijuana, this carries a mandatory 5 year minimum sentence. If charged without specifying the amount, the guideline range for a defendant who pleads guilty is still 46-57 months in criminal history category I. This is lower than the mandatory minimum, granted. But most--though by no means all--defendants in category I are going to qualify for safety valve anyway, so the minimum does not apply to them and the guideline range will be even lower. The new policy will not affect those defendants.

Defendants in category I who are not eligible for safety valve because of a weapon, leadership role, violence, etc., will not be eligible for the DOJ's new policy anyway, so the mandatory minimum will still apply to them, and their guideline range will still be above the mandatory minimum.

Defendants in category II and higher are not safety valve eligible, so in theory they stand to benefit the most from this policy. But even in category II, the guideline range after a guilty plea is still 51-63 months in a 100-kilo marijuana case, which gives a 9-month leeway. At category III, the leeway is a matter of three months and by category IV it disappears altogether. Of course, the higher one's criminal history category, the less likely it will be that a defendant qualifies for the DOJ's largesse.

If the amount of drugs is higher, the difference between the guideline range and the mandatory minimum starts to become academic.

Basically, those who are most likely to benefit from this policy will tend to be defendants in category II and III, whose relevant conduct amounts to something close to the mandatory minimum amount, where judges exercise their discretion to vary or depart downward from the guideline range.

I hate to be Debbie Downer, but frankly I don't view this as much of a sea change. Hopefully I will be wrong.

Posted by: C.E. | Aug 12, 2013 10:46:30 PM

Mr. Levine.

It's possible to square your analysis with C.E's analysis but only if one accepts you're playing word games. I have no doubt that there will be some tangible benefit to a very small subset of cases. But C.E.'s thinking reflects my intuition which is that most of the time for most defendants this new policy isn't going to make any meaningful difference in the sentences people spend behind bars.

This certainly doesn't mean that I am opposed to this new policy. But it does mean that I think it's being vastly overplayed for political reasons.

Posted by: just me | Aug 13, 2013 12:50:28 AM

Not a mention of The Unloved (2010) and why would there be? The criminal justice system is ex post facto. Too late.

NetFlix it to see what I mean.

Posted by: George | Aug 13, 2013 1:01:48 AM

just me:

You may be right. However, I point to the following language from Holder's speech, highlighted by Prof. Berman: "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason." This language from the chief law enforcement officer of the country will be quoted in many a defense memorandum in support of a downward departure.

Posted by: Michael R. Levine | Aug 13, 2013 3:26:28 AM

As near as a I can tell it is fancy words that change nothing at all other than transfer prisoners from the federal system to the state system. To my mind many of the people who this proposal is trying to help would actually be better off in the federal system than in the state system because (a) the prisons are better and (b) they are likely to get a higher quality PD than at the state level.

The state penalties for comparable offenses are usually quite a bit lower. I'm no expert on the quality of state PDs, but I doubt there are many defendants who would prefer to be charged with a federal crime.

As much as the states tend to complain about Washington, federal policy tends over time to be influential. A statement like this, coming from a sitting AG, could mark the beginning of a long overdue sea change. (A number of ex-AGs, like Edwin Meese, have come out against mandatory minimums, but they were curiously silent about it when they were in power.)

Beyond that, this is simply right on federalism grounds. The decision to prosecute crimes that occur locally, should be made locally.

The new policy of not specifying drug amounts in indictments will affect defendants very little if judges do not use their newfound discretion to vary downward.

True, and in some cases they won't. But there are many judges who've stated on the record that the mandatory minimums are too high; I don't recall very many who said they were just right or too low. Holder's decision certainly must lead overall to lower sentences, although of course not every defendant will get the benefit.

Posted by: Marc Shepherd | Aug 13, 2013 7:09:55 AM

Marc Shepherd --

I am not aware of Ed Meese's having come out against MM's. Do you have a specific quotation or a link I could look at?

Posted by: Bill Otis | Aug 13, 2013 8:34:54 AM

Bill, greetings. In response to your query to Mark Shepard, I found the following on the FAMM website setting out views of some conservatives:



Grover Norquist
“The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking. It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.”
- Grover Norquist, President, Americans for Tax Reform, written testimony submitted to the Subcommittee on Crime, Terrorism, and Homeland Security, House Committee on the Judiciary, July 14, 2009.

David A. Keene
“[M]y opposition to mandatory minimums . . . is rooted in conservative principles; namely, reverence for the Constitution and contempt for government action that ignores the differences among individuals. . . . James Madison, for one, believed that a clear separation of powers was more vital to protecting freedom than the Bill of Rights. Yet mandatory minimums undermine this important protector of liberty by allowing the legislature to steal jurisdiction over sentencing, which has historically been a judicial function. The attempt by legislatures and the Congress to address perceived problems in the justice system by transferring power from judges to prosecutors and the executive branch violate these principles and have, in the process, given prosecutors unreviewable authority to influence sentences through their charging decisions and plea bargaining power.”
- David A. Keene, Chairman, American Conservative Union, written testimony submitted to the Subcommittee on Crime, Terrorism and Homeland Security of the U.S. House of Representatives Committee on the Judiciary (July 14, 2009)

Pat Nolan, Justice Fellowship
“When judges mete out sentences for certain crimes, mandatory minimum laws prohibit them from weighing the relative harm caused by the crime or the relative culpability of the defendant. Mandatory minimum sentences are “one size fits all”. These laws offend the very notion of justice, which requires that the severity of the punishment match the harm done by an individual criminal. In Exodus 21:24, we are told that our judgments should exact an “eye for eye, tooth for tooth.” This verse limits punishment by requiring that offenders pay back “value for value.” The Bible calls for proportionality in punishment, and stresses that penalties should match the injury.”
- Pat Nolan, President, Justice Fellowship, “Mandatory Minimums, Unjust and Unbiblical”

Ed Meese, former U.S. Attorney General for President Reagan
“I think mandatory minimum sentences for drug offenders ought to be reviewed. We have to see who has been incarcerated and what has come from it.”
- Ed Meese, former U.S. Attorney General under President Reagan and Senior Fellow at the Heritage Foundation, quoted in Texas Public Policy Foundation, “What Conservatives are Saying About Criminal Justice Reform” (Jan. 2010)

Pat Robertson, Christian Broadcasting Network
"[O]ur government [should] revisit the severity of the existing laws because mandatory drug sentences do harm to many young people who go to prison and come out as hardened criminals. ... [T]hese mandatory sentences needlessly cost our government millions of dollars when there are better approaches available."
- Thoughts of Pat Robertson, Founder and Chairman of the Christian Broadcasting Network, as delivered by CBN spokesman Chris Roslan on Dec. 23, 2010


P.S. I saw you on Public T.V. last night. You were impressive. Congrats!

Posted by: Michael R. Levine | Aug 13, 2013 10:16:08 AM

Michael R. Levine --

Thanks very much. I know Grover and some of his pals have gone to the Dark Side on this. Meese is a different matter, and I'm checking with Heritage to see what his specific position is.

I might say in response to some of those you have cited that, while judges have historically and correctly (in my view) had a substantial say-so over sentencing, it is also the case that the legislature's setting tops and bottoms also has a long and (up to now) accepted historical pedigree. As Mistretta noted, all three branches are properly involved in setting the broad parameters of sentencing.

Your posting more has been a shoot in the arm to the comments section, and I hope you'll keep it up.

Posted by: Bill Otis | Aug 13, 2013 10:58:23 AM

Those here supporting the AG and this lawless administration should be ashamed. It is just another example (like the ACA as well) of the executive circumventing a statute passed by Congress and signed into law.

Someday, it will be your ox being gored and you will wonder why no one cares.

Posted by: TarlsQtr1 | Aug 13, 2013 1:55:47 PM

Just me:

I just saw this posted on the NACDL website, which supports my view that defense lawyers do view Holder's statement as indeed significant:

"Jeffrey Zimmerman, an Alexandria defense lawyer, said Holder's memo had 'rocketed around the defense community' and could undercut an argument prosecutors often make in negotiating plea deals - that their hands are tied by 'office policy.' Zimmerman said that while the policy change probably would not affect those already sentenced, it would put the brakes on defendants about to agree to plea deals that might bind them to mandatory minimum terms."

Posted by: Michael R. Levine | Aug 13, 2013 2:19:53 PM

TarlsQtr1,

You write "Those here supporting the AG and this lawless administration should be ashamed. It is just another example (like the ACA as well) of the executive circumventing a statute passed by Congress and signed into law."

1. Surely you agree that prosecutors have absolute discretion whom to charge and what charges to bring. If so, the prosecutor can choose not to charge x with any crime, or if charging x, not to charge him with a crime carrying a mandatory minimum term. So why is such an exercise of prosecutorial discretion "lawless"?

2. With respect to the ACA, I don't understand your criticism. By delaying the employer mandate for one year, Obama is simply ensuring that the law passed by Congress and upheld by the Supreme Court is "faithfully executed."

3. Why should supporters of reasonable sentencing policies outlined by Holder on this blog be "ashamed"--when many very conservatives leaders are just as supportive?

Posted by: onlooker | Aug 13, 2013 2:28:52 PM

onlooker stated: "1. Surely you agree that prosecutors have absolute discretion whom to charge and what charges to bring. If so, the prosecutor can choose not to charge x with any crime, or if charging x, not to charge him with a crime carrying a mandatory minimum term. So why is such an exercise of prosecutorial discretion "lawless"?"

My first response is to point out the phrase used in your #2, something about "faithfully execute." I am not sure having your AG willfully ignore the current law fits in with that phrase.

Second, let's play a hypothetical with President Rand Paul in 2017.

Would the majority of those cheerleading Holder call it mere "prosecutorial discretion" if President Paul's AG announced to the ABA that the administration would no longer be enforcing environmental laws?

Would the majority of those cheerleading Holder call it mere "prosecutorial discretion" if President Paul's AG announced to the ABA that the administration would no longer be enforcing gun control laws?

Would the majority of those cheerleading Holder call it mere "prosecutorial discretion" if President Paul's AG announced to the ABA that the administration would no longer be enforcing hate crime laws?

I think you get the idea.

You stated: "2. With respect to the ACA, I don't understand your criticism. By delaying the employer mandate for one year, Obama is simply ensuring that the law passed by Congress and upheld by the Supreme Court is "faithfully executed.""

Is that what he is "simply ensuring?" Even many of his greatest fans admit that the act was meant to ensure that Democrat legislators lose as few seats as possible in the 2014 midterms.

And the ACA does not say that the employer mandate will start at the President's whim. It gives a specific date, which the President is ignoring. Again, that is not how I would define "faithfully execute."

You stated: "3. Why should supporters of reasonable sentencing policies outlined by Holder on this blog be "ashamed"--when many very conservatives leaders are just as supportive?"

It is a good debate to have. Unfortunately, the entire purpose of using executive action in this case is to AVOID debate and act unilaterally. Good or bad, MMs were passed by both houses of Congress and signed into law and should be respected in that manner.

Whether "conservative leaders are just as supportive" is irrelevant. That so many elected officials from both sides are so eager to do the wrong thing for the sake of expediency is just another nail in our coffin. That a bunch of lawyers are also eager to go along with the other guy's ox being gored is similarly troubling.

Posted by: TarlsQtr1 | Aug 13, 2013 3:09:24 PM

One more point, onlooker.

If President Romney had taken over this year and said that he was delaying the ACA until January of 2017, would that have been acceptable?

Posted by: TarlsQtr1 | Aug 13, 2013 3:13:28 PM

TarisQtr1:


You write "Unfortunately, the entire purpose of using executive action in this case is to AVOID debate and act unilaterally. Good or bad, MMs were passed by both houses of Congress and signed into law and should be respected in that manner. "

This misses my point. Congress has passed many hundreds of criminal laws.
Prosecutors have virtually unfettered discretion on whether to charge anyone with these laws. That a particular law is on the books does not mean that they it must be charged by the prosecutor. As the Supreme Court has observed:

"Insofar as prosecutors, as a practical matter, may be able to determine whether a particular defendant will be subject to the enhanced statutory maximum, any such discretion would be similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect. Such discretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors." U.S. v. LaBonte 520 U.S. 751, 762, 117 S.Ct. 1673, 1679 (1997)


Posted by: onlooker | Aug 13, 2013 4:50:34 PM

Tar Is Qtr!

You write: "And the ACA does not say that the employer mandate will start at the President's whim. It gives a specific date, which the President is ignoring. Again, that is not how I would define "faithfully execute."


I agree that Obama cannot decide not to set up the ACA altogether because he has “to take care that the laws be faithfully executed.” At the same time, in the Administrative Procedures Act, Congress has given him (the executive branch) flexibility in determining what it means to “faithfully” execute a law. In Chevron v. NRDC, a 1984 Supreme Court case, the justices granted agencies regulatory authority when it comes to filling in any ambiguous gaps in a law. See also Telecommunications Research and Action Center v. FCC.

Besides, Obama by no means dispensing with the law — on the contrary, he is in the process of to implementing it — he is simply making an adjustment, well within executive discretion. This authority stems from agency power in the ACA itself to “prescribe all needful rules and regulations for the enforcement of this title.” In the past, across administrations, similar authority has been used to postpone the application of new legislation when the immediate application would have subjected taxpayers to unreasonable administrative burdens or costs. Moreover, this is something that implementing agency has done more than a dozen times before with the ACA, without a peep from Congress.

Posted by: onlooker | Aug 13, 2013 5:31:09 PM

onlooker stated (emphasis added): ..."such discretion would be similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against A criminal suspect. Such discretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors." U.S. v. LaBonte 520 U.S. 751, 762, 117 S.Ct. 1673, 1679 (1997)"

Would it be fair to say that the case you cite refers to prosecutorial discretion in a single case? I am not an attorney so I am not going to argue the fine points of law, but it seems quite clear that the INTENT of the decision was not to grant BLANKET discretion to ignore the law.

You stated: "In Chevron v. NRDC, a 1984 Supreme Court case, the justices granted agencies regulatory authority when it comes to filling in any ambiguous gaps in a law."

An employee mandate to "start on January 1, 2014" is not a gap or ambiguous.

And I noticed that you did not answer my questions.

Would you and those with the same political leanings as you have been OK with a Paul Presidency exercising "prosecutorial discretion" in regards to environmental law, hate crimes, gun control, banking regulations, or even collecting certain taxes from the "rich?"

Would y'all been OK with a Romney Administration delaying the ACA until he left office?

Posted by: TarlsQtr1 | Aug 13, 2013 6:30:20 PM

TarIsQtr1,

you write: "Would you and those with the same political leanings as you have been OK with a Paul Presidency exercising "prosecutorial discretion" in regards to environmental law, hate crimes, gun control, banking regulations, or even collecting certain taxes from the "rich?"

A: With respect to criminal laws, the executive has discretion whether to prosecute and whom to prosecute. This goes for either "political leaning." If one side is not satisfied, I supppose they can that can launch impeachment proceedings and try to get a conviction and removal from office.

Would y'all been OK with a Romney Administration delaying the ACA until he left office?

A: No. But Obama is not delaying the ACA, only a small part of it (employer mandate), and only for a year. Remember most employers covered under the delay provison already provide insurance to their employees.

Posted by: onlooker | Aug 13, 2013 7:30:13 PM

Thanks for your responses onlooker. I have two main points.

I do not believe that "prosecutorial discretion" was meant to nullify a law passed by Congress and signed by a President. It was intended to right a wrong or give the prosecutor some leeway in individual cases. In my opinion, what Obama is doing is a gross bastardization of its intent. And even if it is lawful, just because you CAN do something does not mean you SHOULD. Again, one day it will be your ox being gored.

You stated:
A: No. But Obama is not delaying the ACA, only a small part of it (employer mandate), and only for a year. Remember most employers covered under the delay provison already provide insurance to their employees."

You said previously that the President was given this right, citing the Chevron case. Does it limit it to "parts" of a law? If you can justify it to delay a part for a year, it is a short walk to delaying the entire law for many years.

I would also note that the employee mandate is part of the heart and soul of the law, nor is it the only part being delayed. To claim that only a small part is delayed is not accurate.

Posted by: TarlsQtr1 | Aug 13, 2013 9:21:48 PM

LOL you were doing great tarls till this!

"An employee mandate to "start on January 1, 2014" is not a gap or ambiguous."

sure it is. the USSC proved that for all time when they creatively interpeted "NO expost" to "NO expost except in civil law or sex crimes"

now suddenly the show is on the other foot and people are pissed!

I love it!

Posted by: rodsmith | Aug 13, 2013 10:11:31 PM

onlooker,

This sure is interesting:

"In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This "extraordinary remedy" is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case "raises significant questions about the scope of the Executive's authority to disregard federal statutes.""

"The Nuclear Waste Policy Act of 1983 requires that the NRC "shall consider" the license application for the repository and "shall issue a final decision approving or disapproving" it within three years of submission.

"Mr. Obama promised to kill Yucca as a candidate and the Energy Department tried to yank the license application after his election. But an NRC safety board made up of administrative judges ruled unanimously that this was illegal unless Congress passed a law authorizing it. Mr. Obama then teamed up with Senate Majority Leader Harry Reid of Nevada to stack the NRC with anti-Yucca appointees.

Although Congress appropriated money to conduct the review, the NRC flat-out refused, in violation of the three-year statutory deadline. "By its own admission, the Commission has no current intention of complying with the law," writes Judge Kavanaugh, despite a 2011 ruling from a separate D.C. Circuit panel instructing the NRC to follow through."

"Congress did not amend the 1983 statute. "As things stand, therefore, the Commission is simply flouting the law," Judge Kavanaugh continues. "In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us," the court had no option other than the mandamus writ."


http://online.wsj.com/article/SB10001424127887324085304579010743875400898.html?mod=WSJ_Opinion_LEADTop

This sounds A LOT like what is going on wit the ACA and mandatory minimums. Comments?

Posted by: TarlsQtr1 | Aug 15, 2013 8:32:06 AM

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