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January 26, 2008

AG Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity

The end of this New York Times article provides more details on Attorney General Michael Mukasey's position on crack retroactivity:

Mr. Mukasey also revealed [in a Friday news conference] that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission’s decision to reduce prison sentences for crack cocaine dealers. “We need to see what the prospect is for getting legislation and on what terms,” said Mr. Mukasey, who has criticized the commission’s move since it could result in the early release of potentially violent criminals.

This effective Los Angeles Times piece provides more background on this issue and highlights that crack retroactivity reductions have already become a reality for a few offenders in Oregon:

Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders.  But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March.  The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon....

The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences.... "Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."

Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders.  Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges.  He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.

I was not aware of these interesting Oregon developments, and I hope to blog more about them if/when I get additional information.  Meanwhile, it seems clear to me that AG Mukasey is not seriously interested in a legislative fight over this issue right now: it's unlikely, despite Senator Hillary Clinton's misguided opposition to crack retroactivity (details here and here), that a bill rejecting the new guidelines' retroactivity could secure passage in a Democratic Congress anytime soon. 

I suspect AG Mukasey is now being "unusually outspoken" primarily to influence federal district judges as they consider motions for crack sentencing modifications.  As the AG knows, no defendant will get a reduced sentence without judicial approval.  During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become "tough-on-crime" political talking points.  I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases.

Some related posts on the practicalities and politics of crack retroactivity:

January 26, 2008 at 09:09 AM | Permalink


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What right does a federal judge have to reduce a sentence under Guidelines that are not yet effective?

Sounds like a government of men, not laws.

Posted by: Da Man | Jan 26, 2008 11:47:35 AM

As a practical matter, this DOJ is a lame duck, legislatively speaking. So, perhaps you are right that he is engaged in some rhetorical crap to “influence” judges because he doesn’t have that high opinion of the lawyers that actually have to practice.

Da Man, First of all, saying we are a “government of men not or laws” or the reverse might cut it in high school civics (in a public school), but it means nothing, and if it brands you as a lay person. No matter what your jurisprudential assumptions are about “law” any form of government will ultimately involve men.

Secondly, your comment doesn’t make too much sense otherwise. For one, the Guidelines are now advisory. Secondly, the statue (enacted by Congress) -- 18 U.S.C. 3582(c) specifically does allow judges to revisit a sentence based on certain changes to the guidelines. (Whether or not Booker applies to such resentencing is unclear.)

Posted by: S.cotus | Jan 26, 2008 12:24:20 PM


You have a bad habit of lecturing the posters to this blog in a way that makes you sound more arrogant than knowledgeable.

My point is simple: the Sentencing Commission's amendment is not yet effective; what power, therefore, does a judge have to invoke that amendment to actually set someone free. It would be one thing if a judge said, "as of the effective date, you're a free man." But that's not what happened here.

Posted by: Da Man | Jan 26, 2008 12:44:45 PM

I do not practice in federal court. But it would be an incredibly sad state of affairs if unelected, life-tenured federal judges can be cowed by "political pressure" from anyone, including the AG and his minions. I thought that was the whole point of life tenure and salary protections?

Posted by: Anon | Jan 26, 2008 1:55:20 PM

majority of lawyers are born liers and love the vision of fear. they think they are somehow amoung the elite in society , because they know the law. the tides turn things are occuring that one could never imagine. the law says anyman that is white is a criminal thats all it has to state to lock your ass up indiffenitley, then you all will be fighting for the cause..

Posted by: dede | Mar 14, 2010 11:32:34 PM

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