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January 24, 2008

AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative

As detailed in this official DOJ statement, in "a speech before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey today announced the President is seeking $200 million in funding for a new Violent Crime Reduction Partnership Initiative for Fiscal Year 2009." 

I am very pleased to hear that the Administration is going to focus crime-fighting energies and monies on violent crimes.  However, I was very troubled to see from this Reuters report that AG Mukasey could not resist taking a silly swipe at the US Sentencing Commission's crack retroactivity decision.  Here's are excerpts from the Reuters article:

A pending early release of hundreds of crack-cocaine dealers whose sentences have been judged unfairly harsh threatens to cause more crime in U.S. cities, Attorney General Michael Mukasey warned on Thursday.  But some mayors said Mukasey was exaggerating the threat and described the real problem as a lack of federal assistance for programs aimed at helping ex-convicts return to society.

Mukasey told the U.S. Conference of Mayors about 1,600 convicted criminals — "many of them violent gang members" — may be released as early as March under a decision by the U.S. agency that sets sentencing guidelines for federal crimes. "A sudden influx of criminals from federal prison into your communities could lead to a surge in new victims with a tragic but predictable result," Mukasey said.

But Kevin Burns, the mayor of North Miami, Florida, said Mukasey seemed to be "striking fear" and it was most likely that only non-violent offenders would be released early. "I think it was possibly overstating it a bit," Burns told Reuters after the speech....

Some mayors said they agreed with reducing cocaine sentence disparities but shared concerns over early releases. The biggest problem is a lack of programs to help ex-convicts, Bridgeport, Connecticut, Mayor Bill Finch said.  "A lot of these people feel like society has thrown them on the trash heap," he told Reuters. "The more we get tough on crime, the more we fill these prisons up, the more we create a balloon at the end that becomes the cities' problem."

Mukasey acknowledged a need for education, job training, drug treatment and housing to help ex-offenders, but said these may be unavailable for the early-release crack prisoners.  "We need time to develop all of that and roll it out, time that blanket retroactivity might not allow us," he said.

It is a telling and disappointing reality that city mayors better understand and talk more responsibly about federal sentencing realities than does the Attorney General.  The USSC's new crack rules are carefully structured to avoid early release of offenders likely to endanger public safety and they do not amount to "blanket retroactivity."  Moreover, the USSC has been seriously discussing — with a DOJ official a part of the discussion — crack reform for more than a year and the serious prospect of some early releases has been well-known since at least May 2007.  If DOJ would get serious about real solutions instead of scaring folks about unreal problems, perhaps it would have the time that AG Mukasey says he needs.

Jeralyn at TalkLeft here and the folks at FAMM justifiably assail AG Mukasey for fear mongering.

UPDATE:  Friday's Los Angeles Times has this effective article about AG Mukasey's crack comments, including lots of appropriate and critical analysis of the AG's assertions:

The bleak assessment offered by Mukasey was challenged by inmate advocacy groups, public defenders, judges and even some of the big-city mayors listening to his remarks.  "In the grand sweep of the nation's criminal justice system, the release of this minuscule number of prisoners will not affect crime rates.  It will, however, significantly improve the perceived fairness of our federal criminal justice system," said Paul Cassell, a professor at the University of Utah law school.

Cassell -- a former federal judge who led a policymaking arm of the federal courts that supported the sentence reductions -- noted that no prisoner would be released under the program unless a judge decided the inmate was no longer a threat to the community.  "All of these prisoners were going to be released in the future," Cassell said, "so the retroactivity provision simply provides a slight acceleration of their release date."

The number eligible, equal to about 10% of the federal prison population, amounts to the most sweeping act of federal clemency in history.  But it is a small fraction of the inmates released from state and federal prisons every year.  "About 700,000 people are coming out of prison this year, many of whom were convicted of a violent offense. So now the change means we'll have 701,600 instead. Seems like he's kind of missing the point," said Marc Mauer, executive director of the Sentencing Project, an inmate advocacy group in Washington.  Mauer said that the criticism "is really an insult to the judges."

Mukasey himself was a federal judge for 18 years before retiring in 2006.

"I think [Mukasey] is wrong," said Michael Nachmanoff, the federal public defender for much of Virginia. "First, the number of people getting out in March may be much lower, and second, probation and the courts are more than capable of supervising these individuals."

January 24, 2008 at 09:00 PM | Permalink


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Bush Administration Official is utterly ignorant & distorts reality. In other news, the Earth continues to rotate around the Sun.

Posted by: Sentencing Observer | Jan 25, 2008 10:32:33 AM

A small quibble the Earth rotates once a day and revolves around the Sun once a year. Not that that makes a bit of difference about the Bush administration's feeble grip on reality.

"Tuff on Crime" is used by both parties to win elections.

Posted by: John Neff | Jan 25, 2008 12:20:24 PM

I remember in law school the endless whinning about the "poor crackheads" getting the shaft under our criminal system. These people always complained that such sentences targeted the poor, and thus in turn it disproportionately affected the black community. My snarky response: "even if it is targeted toward black people, would we call it racism or affirmative action?"

Yes, crack is a poor man's drug. So should we be more lenient on those who use it or sell it? Or harder on them? The poorest communities in America are the ones being hit the hardest by this scourge. Harsh criminal action might harm the criminals, but that same action helps the community. And if we equate poor with black (a claim that is itself questionable) then is it really kindness toward the black community to be softer on such criminals?

Let's try the extreme example. Imagine if a city decided that its police would no longer patrol predominantly black communities. Is that being nice to black people, or racist? If you are a person living in such a community who played by the rules and had built something for himself, the answer is obvious.

And if we are dead set on imposing "equality" in drug sentencing, as though all drugs were created equal, then why equality downward? Why not instead equality upward, as in we lock up the rest of the drug heads for longer?

Btw, I am a lawyer not alligned with the prosecutorial or defense bar.

Posted by: A.W. | Jan 25, 2008 5:23:41 PM

The logic of the critic seems off. We're letting out a lot of people anyway, so what's the harm in letting out a few more?

Posted by: federalist | Jan 25, 2008 6:44:39 PM

AW, Finally someone is with me. I have always said that 35% of the country should be in jail and the way to do this is 1) pushing more things more harshly; and 2) understand that there will be a high error rate in conviction (i.e. 65%).

Like you, I feel safer when more of the country is in jail. In fact, I would gladly pay DOUBLE my income tax and sales tax if we could get past the 35% incarceration rate.

If you disagree with me you are a liberal that is pro-crime.

Posted by: S.cotus | Jan 26, 2008 6:35:28 PM

There is no doubt in my mind that there will be some temporary increase in crime incidence as a result of the release (temporary because as Cassell rightly notes, this wave of releases will be matched by a dearth of releases a few years later), and that it will be felt most strongly in jurisdictions that most heavily used the crack charges who there receiving early release will mostly choose to go when released. The numbers aren't that significant compared to the total number released everywhere, but in some judicial districts, in Virginia, for example, the numbers may be significant.

Also, while all released felons have quite high recidivism rates compared to the never incarcerated general population, I suspect that crack offenders probably have higher rates of violent recidivism than, for example, immigration offenders or white collar criminals who make up a disproportionate share of federal prisoners (compared to state inmates).

Economically marginal black men (who many crack defendants were) with substantive abuse problems (which most crack defendants had and have not fully been rehabilitated from while incarcerated), with felony drug offense records are likely to leave prison with few opportunties to get on the right track. Jobs will likely be scarce, treatment options few and unaffordable, and barriers to connecting to friends and family and supporters who can help them forge more positive lives going forward real. A weak economy when they are released won't help either. And, Mukasey's stereotypes about what kind of people those released are will be shared by many people who will have to decide whether or not to gives these individuals a break they need to "play by the rules" with minimal public support. Against this backdrop, a gang may look like a good option economically and personally, even if the person wasn't in a gang before going to prison.

Many will also leave prison with a self-image of being drug dealers that federal drug offense conviction, sentence to a long prison term, and association with other harder core federal criminals while incarcerated, has probably enhanced from how they viewed themselves when arrested. A gang is going to be one of the only groups in society that will consider this change in self-image a plus rather than a disqualification.

The drug scene they return to on the streets, exagerated in a Superbowl commercial by the street corner dealer suffering a decline in business as more people turn to abuse of prescription drugs, will be different from the one they left, however.

Many people are not going to be able to handle those pressures and will commit crimes again, although I suspect economic crimes like drug dealing, larcency and burglary, rather than violent crimes, will predominate.

Also, the long terms served already relative to the seriousness of the offenses, and the quality of unexpected mercy with which the early release has come about may cause many to do at least as well, and probably better, than they might have if released as scheduled. While many will be blind to it, I think many will see that they have received an opportunity to remake their lives early, and want to seize it.

Posted by: ohwilleke | Feb 4, 2008 3:00:46 PM

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