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April 11, 2014

Was it "disrespectful" to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?

The question in the title of this post is prompted by this National Review article, headlined "Judge: Holder ‘Disrespected’ Judicial Branch In Sentencing Change," about a verbal skirmish that emerged during yesterday's US Sentencing Commission meeting to approve formally a small reduction in all federal drug guideline sentences (basics here).  Here are excerpts:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”...

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission — an independent agency within the judicial branch tasked with setting such policies.  Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent. Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.  “For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise.  It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement.

My first reaction to this piece was to be intrigued and pleasantly surprised that Bill Otis was quoted criticizing the nation's top prosecutor for how he seeks to exercise his lawful prosecutorial discretion. (Notably, the author of this NRO piece seems to suggest that the AG should have felt some need to "consult" with a judicial branch agency before announcing a major prosecutorial initiative; I am pretty sure, based on prior debates over the potential problems with unreviewable prosecutorial discretion, that Bill does not believe it would be wise or even constitutional to expect federal prosecutors to have their charging policies reviewed by the judicial branch.)

My second reaction to this piece was to wonder if most federal judges agreed with Judges Pryor and Hinojosa that it was disrespectful and dangerous for the AG to instruct his prosecutors not to object to defense requests to apply the proposed reduced drug guidelines ASAP.  This issue is dynamic and challenging in part because if AG Holder had instructed prosecutors to object to application of these new guidelines until they formally became law in November, then defendants would likely start requesting sentencing delays in all federal drug cases throughout the bulk of 2014.  Because there are about 500 federal drug sentencings every week, this in turn would mean federal district judges nationwide would be receiving motions for sentencing postponements nearly every day for the next seven months.

Notably, just because AG Holder instructs his prosecutors not to object to the application of the proposed new drug guidelines, no judge is in turn obligated to follow the proposed drug guidelines.  Rather, judges now just have an easier time applying this new guidelines, if they so desire, without having to put all their drug cases on hold until November.  That is the context for the DOJ ex-officio representantive on the Commission, Jonathan Wroblewski, suggesting that AG Holder is actually seeking to help and show respect for the judiciary via his instructions to federal prosecutors.

That all said, if the substance of the drug guideline reform proposals now adopted by the Commission were very controversial (i.e., if the Commission itself was split) or if there was reason to believe that Congress and the President might formally reject the drug guideline reform proposal (i.e., if there was wide and vocal expressed opposition), then I think the concerns expressed by Judges Pryor and Hinojosa might be more compelling.  But since these judges themselves both voted with the unanimous Commission to lower the drug guidelines, and since there is momentum in Congress for even more drug sentencing reform, I do not really find AG Holder's exercise of his lawful discretion in this setting all that disrespectful or dangerous.

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"Holder’s cavalier approach to separation of powers, including a March memo in which he `instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,' irritated commissioners and alarmed supporters of constitutional separation of powers."

So in this Alice-in-Wonderland world we live in, it is going around the U.S. Sentencing Commission, AS OPPOSED TO THE VERY EXISTENCE OF THE COMMISSION ITSELF, that is an affront to the separation of powers.

"[T]he Court errs . . . because it fails to recognize that this case is not about commingling, but about the creation of a new Branch altogether, a sort of junior-varsity Congress." Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

Posted by: Michael J.Z. Mannheimer | Apr 11, 2014 4:09:47 PM

To defend Bill (not that he isn’t capable of defending himself), but what the AG is proposing doesn’t seem like “discretion.” He’s not asking AUSAs to look at individual cases and decide whether the application is appropriate. He’s not even asking them to lean in the direction of not objecting, only deviating from that policy with good cause, or forcing them to document, with good reason, why they object. He’s saying that, for all defendants in all cases, under all circumstances, without exception, no AUSA will object—that’s the opposite of “discretion.”

Posted by: GP | Apr 11, 2014 4:32:46 PM

Assistant United States Attorneys have asked sentencing judges to consider the two level reduction just voted upon by the Sentencing Commission. No judge was obligated or required to make such reduction. I see no separation of powers issue here...E. Sargus

Posted by: Edmund A. Sargus | Apr 11, 2014 4:36:39 PM

"To defend Bill (not that he isn’t capable of defending himself), but what the AG is proposing doesn’t seem like “discretion.”

Tosh. The issue is /whose/ discretion. The AG has the discretion to order his minions to do what he wants so long as they operate within the law. Did this order take away the individual's prosecutor's discretion? Yes. So what? If The boss doesn't have the power to take away the discretion of the underling, he's not the boss.

All Bill can do is huff and puff and draw absurd lines in the sand.

/BTW, while I will defend the AG's power if I were the AG I would not exercise it in this way. Further, my sympathy is with Scalia on this point in any event.

Posted by: Daniel | Apr 11, 2014 5:28:34 PM

GP:
Holder has never said "for all defendants in all cases, under all circumstances, without exception" give them a 2-point reduction in drug cases. If a defendant is a "career offender" under the guidelines, he does not get a 2-point reduction. That is because the "career offender" guideline not the drug (2D1.1) guideline provides the rule of decision.

Posted by: ? | Apr 11, 2014 8:44:17 PM

Now that we're in the world of discretionary guidelines, I feel the particular criticisms about the role of the commission don't carry much weight. The Commission is free to make its guidelines and both Prosecutors and Judges routinely ignore them depending on the circumstances. Back when they were mandatory, there would perhaps be an argument that Prosecutors shouldn't undermine the goal of consistency, but that doesn't seem all that pressing now.

I can't see why Attorney General Holder's actions would have been helpful, though.

Posted by: Erik M | Apr 11, 2014 10:52:08 PM

So if I understand this correctly, the USSC has approved a 2 level drop for all drug offenders to be sentenced. Does this effect those already sentenced and serving time.

It sounded like if they have any violent crimes in their history, they would not be eligible
Nor would career offenders. It goes into effect in Nov?

Is this the points of what was voted on?

Posted by: Midwestguy | Apr 12, 2014 12:05:58 AM

The amendments, which the Sentencing Commission has adopted unanimously, are certain to take full effect on November 1, 2014. 18 U.S.C. 3582 will provide the basis for a substantial number of resentencing petitions. It would seem that efficiency is best-served by district court judges addressing and considering these guidelines changes in sentencings that are going on now, a practice that it seems will best marshal the time and resources of both the district courts and the U.S. Attorney's offices around the country. I just don't see any separation of powers issues whatsoever.

Posted by: Robert L. Abell | Apr 12, 2014 10:25:20 AM

I do not believe that AG Holder disrespected the judiciary with his decision.

Had defense counsel in an Ohio juvenile case called the trial judge a jerk for suspending the juvie's driver's license for 99 YEARS ; THAT would have shown disrespect (the trial judge was reversed on appeal because he had NO authority to impose the sentence).

Had I unplugged the life support equipment of a hospitalized unconscious rogue trial judge in 1963 , THAT would have shown disrespect .

Posted by: Docile Jim Brady - Columbus OH 43209 | Apr 12, 2014 3:13:43 PM

Disrespect? The way the Commission promulgated the Guidelines and perpetuated the myth they were based on emprical evidence and national experience shows great disrespect for the truth.

Posted by: Steve Prof | Apr 12, 2014 5:01:42 PM

Where does Judge Pryor sit on a bench? Eighth Circuit? Seventh?

Posted by: Liberty1st | Apr 12, 2014 8:59:58 PM

"Disrespect? The way the Commission promulgated the Guidelines and perpetuated the myth they were based on emprical evidence and national experience shows great disrespect for the truth. "

Nailed it!

Posted by: anon14 | Apr 12, 2014 9:03:25 PM

Ok. I took 219,000 federal inmates. Figured 60% of them were in for drugs. Then took 70% of that number. Gives us the number of inmates that could get a 2 level drop if this was retroactive. Then multiply, that number by 11 months, avg of the bunch if given a 2 level drop. This gives the total months. Divide that by 12. Then multiply the number of years by 27000 for each yr saved. It comes out to be $2,276,505,000.

2 billion, 576 million. No wonder they didnt make it retroactive. The goal was to save money. For the feds to save this, and the savings would start immediately. It all makes sense. Its just not worth it. Hardly a drop in the ocean of bucks they are spending.

Lets see, but if we just give new sentences a 2 level drop, thats way better. It will take years for the shortest sentences to kick in just a little bit.

Yup, I pretty much understand the outcome of this monumental break thru on sentence reduction for drugs. Please pardon me if I forget to applaud. The families involved must be gracious and the public once again will have faith restored in their government.

Yippee Skippee. As far I can see, its good for the newbys. But the ussc has struck out if they fail to make this retroactive. Thats where all the savings is. They need to grow a set of nards. Government buerocrats with paper @ssholes. That pretty much sums it up.

Federal drug sentences are so long, its hard to grasp what eternity is like. But thats just about what I still read in the paper and on this blog.

Posted by: Midwestguy | Apr 13, 2014 1:29:41 AM

Pryor was on the 11th Cir. He was a bad judge and we were glad to see him kicked upstairs. I think he can do less damage in his current role.

Posted by: AlaJD | Apr 15, 2014 4:21:17 PM

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