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February 7, 2008

More on Mukasey on crack: is the best defense is a good offense?

This Washington Post article has a bit more information about AG Mukasey's latest statements about implementation of the US Sentencing Commission's crack retroactivity decision.  Here are excerpts:

In a statement prepared for his scheduled appearance before the House Judiciary Committee today, Attorney General Michael B. Mukasey said that unless Congress acts, "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide" under a decision by the U.S. Sentencing Commission.  "Retroactive application of these new lower guidelines will pose significant public safety risks . . ." Mukasey said in the statement. "Many of these offenders are among the most serious and violent offenders in the federal system and their early release . . . would produce tragic, but predictable results." ...

Supporters of the commission's action say the fears raised by Mukasey are overblown. They note that inmates would have their petitions to be released heard by judges who would consider filings from prosecutors and probation officers before determining an offender's fitness to reenter society.

"I'm really kind of shocked that Attorney General Mukasey would seemingly not have faith in the American judicial system to do all it can to ensure that violent offenders are not released early and to address a fundamental injustice in the criminal justice process," said U.S. District Judge Reggie B. Walton, who presides in the District. "His position presupposes that judges will be irresponsible in exercising their discretion."

The federal judiciary supported the Sentencing Commission, citing the law's harsh impact on first offenders.  It was joined by federal public defenders, probation officers and activists.  Mukasey seemed to factor the criticism into his statement. "In calling for action, I emphasize that we are not asking this committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders."

I find it notable and telling that these statements is that they arise in testimony submitted to the House Judiciary Committee, which later this morning is conducting an "Oversight Hearing of the Department of Justice."  Notably, as detailed in this press release and this official letter, the Chair of this House Committee is on record demanding from Mukasey "answers to questions about the politicization of the Department of Justice, waterboarding, the destruction of CIA tapes, and vote suppression."  Perhaps AG Mukasey shrewdly believes that, rather than try to defend his Justice Department on all these fronts, he can and should go on the crack attack in the hope of distracting attention from other issues. 

Indeed, against the backdrop of all the recent waterboarding news and the pardon attorney office scandal, I suppose I am not surprised that AG Mukasey would like to make headlines by beating up on judges, the Sentencing Commission and recent efforts to achieve greater sentencing fairness in federal drug sentencing.  I am surprised, however, that I am starting to really miss former AG Alberto Gonzales, who actually tended to be a bit more cautious and nuanced in his rhetoric about sentencing reform efforts and the work of federal judges and the US Sentencing Commission.

February 7, 2008 at 09:53 AM | Permalink


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How are people convicted of nonviolent crime some of the "most serious and violent offenders in the federal [prison] system...."? How can someone say that with a straight face? What a jackass.

Posted by: bruce | Feb 7, 2008 10:06:46 AM

In related news:

Officers: thousands of child porn suspects not investigated

Officers have identified 1,956 computers containing child pornography in Virginia Beach -- the most of any Virginia locality. The problem exists even in the state's small towns, with tiny Pound in far southwest Virginia being home to 53 unique hard drives containing child porn.

The ICAC team has identified one computer in Sandston near Richmond that has made at least 187 transactions, sharing pictures and videos of infants and young children being brutally raped and molested.

"We're not talking about girls that are 13, 14, 15 years old, although they can still get that. We're talking about infants and toddlers," said Lt. Michael Harmony, commander of the Southern Virginia ICAC Task Force.

A 2005 Department of Justice study suggested that 55 percent of those convicted of possessing child pornography admitted to illegal contact with children. The ICAC task forces have found that local children are the victims in about 30 percent of the discovered files.

"These are not just people who are looking at photographs. These are people that are looking at photographs and getting ideas from the photographs and then acting out those impulses on children," said Camille Cooper, with the National Association to Protect Children.

Mm, let's see, 30% of 1,956 is about 587 rapes of prepubescent children, crimes worse than murder. And though they know who is doing this, they can do nothing because they do not have enough money.

You do the moral math on that one.

Rather than "overblown," let's call a liar a liar.

Posted by: George | Feb 7, 2008 11:30:54 AM

It's odd to see Mukasey take a stance that amounts to distrust of federal district court judges. He was, after all, an SDNY judge for years before a short stint in private practice and his appointment as US Attorney.

Posted by: C.Hessick | Feb 7, 2008 11:57:25 AM

Well, Mr. Hessick, taking a position adverse to your previous position is normal and ethical in most places so long as there is no actual conflict on a matter.

Posted by: S.cotus | Feb 7, 2008 1:43:00 PM

It's actually Ms. Hessick.

And I'm not accusing Mukasey of being unethical. Rather I'm saying simply that his position is odd. In the debate over judicial discretion of sentencing, some of the most notable defenders of judges have been judges themselves (e.g., Cabranes, Cassell). While that isn't always the case (e.g., Frankel), my own suspicion is that judges (like most people) would tend to trust themselves and, by extension, their institution.

Posted by: C.Hessick | Feb 7, 2008 4:46:39 PM

Familiarity sometimes breeds contempt.

Posted by: federalist | Feb 7, 2008 5:08:42 PM

George, please post your half-baked book reports elsewhere.

Posted by: | Feb 7, 2008 6:56:19 PM

Prof. Hessick, it is indeed interesting.

But not every judge is a fan of judicial power. One can think highly of the judiciary without necessarily believing that its power and discretion should be expanded.

It's also possible that Mukasey saw a few bad apples on the bench and didn't leave with unalloyed admiration for his colleagues.

But yes, you're right that some of the judiciary's best defenders come from the judiciary and feel the need to combat the popular perception that judges are essentially politicians with special uniforms.

Posted by: | Feb 7, 2008 7:06:34 PM


God commanded me to post half-baked book reports about fear mongering. It is wise to avoid God's wrath.

P.S. You evidently didn't like the moral math problem. Neither did God.

Posted by: George | Feb 7, 2008 10:37:41 PM

"Mm, let's see, 30% of 1,956 is about 587 rapes of prepubescent children, crimes worse than murder. And though they know who is doing this, they can do nothing because they do not have enough money."

That's completely inaccurate in its entirety. The story says that Virginia has a major problem and doesn't have the funds to fully stamp out the problem. There is zero evidence, of any kind, in that story to suggest that they have information about child rape and are doing nothing about it due to funding. Nice job torturing that statistic though.

Posted by: JustClerk | Feb 8, 2008 8:53:25 AM

Sure it does. The story claims there are "1,956 computers containing child pornography in Virginia Beach," and goes on the claim that "The ICAC task forces have found that local children are the victims in about 30 percent of the discovered files."

30% of 1,956 is about 587.

Either LE should be fired for dereliction of duty for using the "Too Poor" excuse or they are lying.

More likely, they just want a lot of $$$. But what if it is true? That would mean there are 587 on-going child sexual abuse cases for every 1,956 computers with child porn. Translate that into nationwide numbers.

Now, you could argue that there was, say, only one child abused and all 587 child porn pictures are of that one child, and that they already arrested the perp in that case. That is not what the story says, however, and it would not justify the new law and money they ask for, since the case was solved without the new law or additional $$$.

It is a misleading article.

Posted by: George | Feb 8, 2008 1:19:24 PM

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