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February 6, 2008

AG Mukasey comes out swinging on crack retroactivity

This ABCNews story and this AP piece both report that Attorney General Michael Mukasey is going to ask Congress to intervene with the retroactive implementation of the new crack guidelines.  Here are a few particulars from a big new story on the crack sentencing front:

The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release....

In testimony he's expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately. "Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday.... 

Mukasey will be testifying before the House Judiciary Committee, whose ranking member, Rep. Lamar Smith, R-Tex., has introduced legislation to halt the retroactive release. "Many of these criminals are dangerous repeat offenders who possessed firearms during their crimes," Rep. Smith said in introducing the measure. A senior Justice Department official described the measure as uncompromising on Wednesday. "The Lamar Smith bill is a straight-up bill opposing retroactivity," the official said....

With less than 30 days to pass legislation before the first offenders are eligible for release, it is unclear how quickly Congress will move.

As I have noted in prior posts (some of which are linked below), it seems very unlikely that Congress will, at this late date, have the time or inclination to do much about the unanimous crack retroactivity decision coming from the US Sentencing Commission back in December.  Nevertheless, the AG's testimony can (and should) turn this into an interesting political issue, especially because now all three serious presidential candidates are members of Congress.

Some related posts:

February 6, 2008 at 05:17 PM | Permalink


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Mukasey is advocating depriving people of their liberty without due process -- that is, on the basis of unadjudicated facts, namely gun use and gang membership. Our lawyer indeed! If he has those facts he should use them, if not then the inmate should be released.

Would a Congressional act with the same intent be unconstitutional?

Posted by: Matt Byrne | Feb 6, 2008 11:59:04 PM

Mr. Byrne, I don’t see what you are saying. Although there is no link to any proposed legislation, there is no indication that a convict seeking release would be completely prohibited from arguing something that wasn’t litigated at trial.

Perhaps you could point to the section of the proposed legislation that you believe is unconstitutional.

Posted by: S.cotus | Feb 7, 2008 6:56:22 AM

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