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February 8, 2008

Division in the Justice Department over crack retroactivity

Writing this strong piece in the Los Angeles Times, Richard Schmitt is focused on the really interesting set of issues in the wake of AG Michael Mukasey's recent crack advocacy.  Here are extended excerpts:

In recent days, Atty. Gen. Michael B. Mukasey has voiced opposition to the early release of hundreds of federal inmates convicted of dealing crack cocaine, saying the move would unleash a potential crime wave in communities across the country.  He reiterated his concern Thursday at a hearing before the House Judiciary Committee.

But some U.S. attorney offices around the country may not be getting the message. In at least three cases, federal prosecutors have supported efforts to win inmates reduced sentences.  Two of the cases are in the Portland, Ore., area, where one inmate is thought to have been released.  A third defendant, jailed in Massachusetts, could be released this summer.  The disconnect between Justice Department policy and how new sentencing guidelines are being applied in some cases suggests the issue may be more complex than the attorney general has indicated....

Peter A. Carr, a Justice Department spokesman, said Thursday that there should be no confusion about where the department stands. "The department's policy on retroactivity is laid out in the attorney general's statement before Congress," he said.  But even some Justice Department officials see little chance that the Democratic Congress would approve such legislation. Opponents say the move would be unfair to defendants who have already served long sentences. 

Justice Department officials signaled at a conference on the new guidelines last month that they would do their part to implement the rules fairly -- a view that appears to contrast with the hard line that Mukasey has recently adopted. Some U.S. attorneys outside the Beltway are already helping implement the rules.  In Portland, the U.S. attorney's office supported reduced sentences for defendants in two cases, even before the guidelines were set to go into effect.  Kent Robinson, first assistant U.S. attorney in Portland, said the office backed the early release in one case because the defendant was already living in a halfway house....

The other Oregon defendant, Octabian Jamar Riley, was sent to prison in 2004 for selling crack and carrying a .45-caliber handgun. On the surface, he seemed to be just the sort of armed criminal that Mukasey was concerned about. But Riley won't be hitting the streets any time soon. Robinson said federal officials had turned over Riley to the state of Oregon to face separate charges.  Robinson said that it was an oversight to process the claims before March 3, and that he was unaware at the time that the Justice Department had a policy against it. "We mistakenly let those slip through before the national policy to oppose release [before March 3] was clear to us," he said. "Both represented rather extraordinary circumstances," he added. He said the office was now opposing any early release requests until at least March 3.

On Wednesday, a federal judge in Boston shaved 15 months off the sentence of another convicted crack dealer, court records show. The defendant, Deborah Woodard, had originally been convicted of possessing more than 50 grams of crack with intent to distribute, and was sentenced to 135 months in federal prison.  The decision by U.S. District Judge William G. Young to trim her sentence followed a request last month by Woodard's public defender.  After receiving the request, Young asked the government for its view on giving Woodard a break. The U.S. attorney's office in Boston responded by joining in the request, court records show. "My understanding is that the attorney general's concerns became known after the motion was filed, and our response was due," said Christina Dilorio-Sterling, a spokeswoman for the U.S. attorney's office in Boston.  Woodard could be eligible for release in June.

February 8, 2008 at 09:29 AM | Permalink


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As a practical matter, no prosecutor (which includes US Attorneys) is going to seriously take a “everyone gets the max” position. Doing makes people not take you seriously.

Finally, the articles seem to say that someone at DOJ said the statements by the AG to Congress were its “position.” This simply isn’t true, either. Its legal positions are taken by US Attorneys (or AUSAs or the SG) in courts.

Posted by: S.cotus | Feb 8, 2008 2:17:13 PM

I will never understand why this is such an issue. If the judge thinks the right thing to do is reduce the guy's sentence, who cares what the prosecutor thinks? And in particular, who cares what the AG - who has no responsibility for any individual prosecution - thinks? If the government wants to appeal let them.

Posted by: Anon | Feb 8, 2008 2:22:11 PM

I'm struck by the inverse (?) of the issue raised by the post - what does this willingness to reduce sentences before the "official" date of March 3 say about the discretion and reasoned judgment of those judicial paragons, to whom we are to trust the decision on whether or not a particular defendant poses a "risk to public safety"? We've got judges in Oregon, Mass., and, it is rumored, Texas, whose wisdom is so great they don't have to abide AT ALL by the limitations to which they are subject?

Posted by: anonymous | Feb 9, 2008 9:17:32 PM

Anonymous, get a grip. Read the article. The Massachusetts judge signed an order releasing the person this summer. Furthermore, March 3 was set by the Commission (not Congress) for the purpose of giving judges time to prepare. The Oregon judges, and the prosecutor there, apparently felt they had had enough time to prepare. Hold the hysteria.

Posted by: abe | Feb 10, 2008 1:40:57 AM

Abe, hyperbole aside (though this is the Internet) I'm afraid you missed the point. Regardless of whether the US Attys joined in the request (or, as I believe more likely, simply did not oppose the request) the judges in these cases did NOT have the legal authority to enter these orders reducing sentences. (And even if the US ATTY joined in the request, isn't the JUDGE supposed to make sure that any action s/he takes is authorized by law?) Arguing that the March 3 deadline was set by the Commission and not Congress (and is therefore somehow less binding?) is a complete non sequitir. Indeed, I doubt that the Commission could have authorized retroactivity without some period of delay. In all prior circumstances when guidelines were reduced, and applied retroactively, the proposal was sent to Congress as a complete package. That is, Congress had from May 1 to November 1 to consider the proposed guideline change (including retroactivity) and reject it or not. In this case, the Commission gave Congress 6 months to consider the reduction, but no opportunity (until the March 3 date was established) to consider retroactivity. So, I ask again, where is/was the authority to act before March 3? Even if Congress fails to overturn retroactivity (and it is highly doubtful that they will overturn it) why not do what most judges are doing - prepare the orders, and sign/issue them on March 3?

Posted by: anonymous | Feb 10, 2008 10:32:04 AM

Pursuant to 28 USC 994(p), the Commission does not send policy statements, such as 1B1.10, to Congress for review.

In fact, the prosecutors in these cases supported the order for release. Even if your speculaion that they did not object was correct, there is no practical difference, especially because it is the prosecutor's job to object if s/he believes there is reason to do so. (Are you a lawyer?)

There is nothing in the policy statement that suggests a judge should not sign an order before March 3 ordering release on or after March 3. That would be silly and counterproductve. It is more efficient to sign an order today so BOP has advance notice and time to devise a release plan.

Posted by: abe | Feb 10, 2008 12:02:28 PM

I have no problem with a Judge signing an Order with an effective date of March 3, but that is not what happened in these cases. In at least one, if not both of the Oregon cases, the Orders were effective immediately and resulted in immediate release. There are other examples out there already as well. Yes, I am a lawyer, (am I now supposed to ask ARE YOU?), and I'm fully familiar with the adversary system, but let me ask - have you never seen a plea bargain, or a joint sentencing recommendation, rejected by a judge? Have you never seen a joint motion for continuance denied? Have you never seen a case dismissed for mootness even though both sides believe the issue requires resolution? Have you never seen a case dismissed by the Court, on its own motion, for lack of jurisdiction, even though neither side raised the issue? Have you never seen cases dismissed by the Supreme Court for procedural issues not raised by either party? The point is, the Judge is NOT just there to just rule for one side or the other, or to rubber-stamp all agreed motions/requests. The Judge is bound to act and rule in accordance with the law, regardless of whether that displeases one or both parties. I tire of this, and if giving you the last word means "you win", have at it.

Posted by: anonymous | Feb 10, 2008 4:30:32 PM

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