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March 16, 2008

AG Mukasey going through the sentencing looking glass

Alice_through My last two posts have me really wondering whether being a inside-the-Beltway must be like being in Alice's mixed-up Wonderland.  To date, United States Attorney General Michael Mukasey has expressed two notable sentencing viewpoints: (1) in a discussion concerning the sentencing of crack defendants, AG Mukasey has advocated to Congress against the U.S. Sentencing Commission's unanimous decision to make some prior drug defendants eligible for retroactive sentencing justice, and (2) in a discussion concerning the sentencing of 9/11 defendants, AG Mukasey has indicated to Europeans that he hopes leniency be shown to defendants who played a role in the murder of thousands of Americans.

Wow!  The symbolic impact of these two notable sentencing viewpoints coming from the top US law enforcer is telling: apparently we should not be too concerned about really achieving sentencing justice in either the war on drugs or the war on terror.  In both wars, it seems, the US Attorney General believe we should just lock everyone away in tiny cages for as long as possible and hope that this (very expensive) approach to crime will keep us safer.

Once again, I am surprised to discover that I am missing the "wisdom" of Attorney General Gonzales.

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March 16, 2008 at 01:54 PM | Permalink


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The symbolic impact of these two notable sentencing viewpoints coming from the top US law enforcer is telling:apparently we should not be too concerned about really achieving sentencing justice in either the war on drugs or the war on terror.

Doug, do you really mean this? It seems to me that the AG does not agree with you as to what sentences are just in these contexts. You are the academic expert in sentencing law, but I would have thought that if two people have different senses of what justice requires, we normally say that directly rather than say that one side believes in justice and the other is not concerned with justice. (Assuming we are not simply interested in cheap political rhetoric, which I assume you are not as an academic expert in this area.)

Posted by: Orin Kerr | Mar 16, 2008 3:11:56 PM

Prof. Berman, if you're really unable to distinguish between Mukasey's statements on terrorists and crack convicts on any ground other than whether Mukasey's position is more or less harsh than that of some other actor in the government, and if the only common thread you see is that in both cases he argues for long prison sentences, then I question whether you deserve to be taken seriously anymore.

Posted by: | Mar 16, 2008 3:20:59 PM

It appears Mukasey is saying he doesn't want to send terrorists to heaven where they can collect their 7 (?) virgins, which may be consistent with our sex offender laws. Mukasey is apparently expanding his jurisdiction to heaven.

Posted by: George | Mar 16, 2008 3:32:35 PM

Orin et al.: What I see is a perculiar (and largely uninformed) consequentialism in the AG's positions here. He seems to think that crack retroactivity could lead to an increase in crime, so he's against it; he seems to fear that execution the 9/11 plotters could lead to giving our enemies what they claim they really want (martyrdom).

Ironically, I tend to be a consequentialist, but I come to very different assessments here. Based on the USSC's expert analysis, I view crack retroactivity to be a net gain for society (in part because judges have discretion NOT to release those who seem to pose a danger to society). And based on deterrence literature and my disinclination to be too concerned with the stated (and suspect) interests of mass murderers, I think we are likely to get a net gain to society by seeking to execute the 9/11 plotters.

These are all, of course, debatable points and one taking a Kantian view of retributivist justice might have another distinct take on all these matters.

But here's what REALLY irks me: AG Mukasey seems eager to speak out against the judgments of the American criminal justice experts groups who have clearly given all these matters lots and lots of thought (the USSC in the crack case; DOD in the 9/11 cases). Doesn't this serve to undercut the ability to have a proper debate over what justice demands if the AG is repeatedly contradicting what the experts have decided after what surely has been a deliberative process (that, I assume necessarily includes DOJ input).

Posted by: Doug B. | Mar 16, 2008 5:42:21 PM


Your first point is that you substantively disagree with Mukasey. I hope you recognize that different people can have different conceptions of what justice requires, all in good faith.

As for your second point, I don't understand how disagreement is supposed to "undercut the ability to have a proper debate." I would think that disagreement creates debate, rather than cuts it off. Or is your view that a "proper" debate one in which "improper" views such as Mukasey's are not voiced?

Maybe I'm just too steeped in the Enlightenment, but I tend to think that we need more arguments and more views, not some sort of orthodoxy in which we should not question "the experts." That's true even if we happen to agree with the experts, and especially true if we happen to be one.

Posted by: Orin Kerr | Mar 16, 2008 7:08:49 PM


I suspect Mukasey, with whom I rarely agree but greatly admire, on the one hand was speaking as the nation's top law enforcement officer (re: crack) and on the other thought he was, if not off-record, not going to have his statements (re: GWoT) make it back to this side of the pond. The only fascinating aspect of his statements, IMO, is that he felt he had to go to England to voice his concerns about the GWoT & the Gitmo detainees.

I also understand your angst. Noncapital sentencing law would do well to get just 1/100th of the per-case attention and meaningful parity for similar offenses would be a great place to start.

Posted by: karl | Mar 16, 2008 9:07:51 PM

Maybe he realizes that he is a lame duck and, when outside some "official" speaking session will just speak his mind.

Posted by: S.cotus | Mar 17, 2008 10:38:12 AM

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