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September 21, 2007

What might AG-nominee Mukasey mean for federal sentencing?

The AP has this fascinating new article, entitled "Mukasey Hit Justice Dept on Sentencing," discussing Michael Mukasey's history with federal sentencing as a judge.  Here are snippets from the article:

As a judge, Michael Mukasey ridiculed the Justice Department for defending federal sentencing guidelines used to mete out prison time to criminals.  Soon, he may be leading the Bush administration's push to toughen the guidelines.

Formally nominated Friday as President Bush's pick for attorney general, Mukasey could find himself in an awkward position as Republicans seize on the 2008 elections to promote the Justice Department's crime bill, which includes mandatory minimum sentences for most federal prisoners.

Judges generally oppose the plan that limits their sentencing discretion - the heart of Mukasey's own complaint as a U.S. District Court jurist in New York's southern district.  Mukasey declared the guidelines unconstitutional in a June 1988 ruling on what would be a fair sentence for a woman who broke out of a drug treatment center.  At least 87 other judges nationwide had similarly deemed the guidelines unconstitutional, he wrote.

In his 15-page ruling, much of it written in a sardonic tone, Mukasey belittled the Justice Department's insistence that the guidelines were a function of the executive branch, while the U.S. Sentencing Commission simultaneously claimed them under the judicial branch....  Mukasey's ruling focused largely on separation of government powers....

Mukasey largely has been silent about the sentencing guidelines since the Supreme Court ruled that, when handing down sentences, judges must consider the guidelines but don't necessarily have to follow them. How strongly he will push the Justice Department's plans for mandatory prison time already has piqued the curiosity of lawyers and legal experts.

"He was one of the judges who tended to follow the guidelines," said Washington defense attorney Michael Horowitz, a member of the Sentencing Commission and a former Justice Department prosecutor who argued cases in Mukasey's courtroom. "As someone who believes in the rule of law, the guidelines were the law.  And he was going to read the law as it was written."

Count me in as one of the lawyers and legal experts whose curiosity is piqued by how an AG Mukasey will deal with the post-Booker world of federal sentencing.

September 21, 2007 at 05:55 PM | Permalink


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