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March 29, 2009

Will AG Holder change DOJ sentencing practicies that seem inconsistent with "the rule of law, equality before the law, and the applicability of Due Process"?

As detailed in this post at The BLT, Attorney General Eric Holder was officially installed in his position just this past Friday in a formal ceremony in which he gave this speech.  Though many might view AG Holder's speech as filled with "rah-rah" Justice Department boiler-plate, this paragraph stood out to me:

Ours is a nation of laws, guided by principles that reflect the essential goodness of the American people. Many of these values – adherence to the rule of law, equality before the law, and the applicability of Due Process – are as well-known as they are timeless.  And yet, these principles can only truly be the animating force of our legal system if we, both individually and collectively, make it so. That is why, Mr. President, I pledge to you, to my fellow Department of Justice employees, and to the American people as a whole that I will lead a Department of Justice that is firmly rooted in, and solely guided by, these sacred principles.  In all that we do, in all that requires us to make the difficult judgments that must withstand the scrutiny of the ages, these values will serve as our eternal touchstone.

Sounds good to me, and I truly hope that these "sacred principles" serve as a "sole guide" and an "eternal touchstone" for all the important work of the Department of Justice in the months and years ahead.  And, with all due respect, I must assert that, in order to truly live up to these principles, all the folks at DOJ need to seriously reconsider certain of its sentencing policies and practices. 

Though one might make a pretty long list of DOJ sentencing practices that seem inconsistent with "adherence to the rule of law, equality before the law, and the applicability of Due Process," in my view these five particular practices justify immediate attention by the new AG:

  1. lack of consistency and transparency concerning child porn prosecutions and plea deals;
  2. lack of consistency and transparency concerning "fast-track" departure motions;
  3. lack of consistency and transparency concerning "substantial assistance" departure motions
  4. frequent (and also inconsistent) inclusion of appeal waivers in plea agreements
  5. aggressive reliance on acquitted conduct in guideline calculations to enhance sentences

In areas 1-4 above, opaque and unregulated discretion seems far more prominent than equality and due process.  And both area 4 and 5, in my view, seem inconsistent with historical conceptions of due process and even the "essential goodness of the American people." 

Commentors are, of course, welcomed and encouraged to spotlight other DOJ policies and practices that seem to be inconsistent with the "sacred principles" that AG Holder has pledged to champion.

March 29, 2009 at 12:45 PM | Permalink


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I would add two more:

Lack of consistency and transparency in handling petitions for executive clemency

Unwillingness by federal prison officials to use available authorities to reduce prison terms

Posted by: margy love | Mar 29, 2009 2:20:22 PM

Not a word about victims, nor about safety. 23 million crime victims a year.

Posted by: Supremacy Claus | Mar 29, 2009 4:33:55 PM

I agree. He didn't once mention the damage the non-lawyers are doing to my country. Every time they speak, it is as if we are all being raped.

Of course, if you were a real American you would have actually read the speech. But, because you wish to do America harm, you did it. Here is what he said:

1. We at the Department of Justice will protect our people from those abroad – and from those within our borders – who seek to do us harm.
(you lied when he said he didn't say a word about "safety.")

2. We will protect our nation’s markets from fraud and from those who prey on the vulnerable
(you lied when he said he did not speak about "victims")

Your lies hurt the USA. Your practice of filing frivolous pro se appeals hurts the USA.

Posted by: S.cotus | Mar 29, 2009 5:01:46 PM

Please, do not do that in court. It will anger the judge, making up stuff not in the writing.

Berman did not quote those passages. Holder, as with all lawyers, cannot utter the V word. They choke, gag, must get air. Victim. Where is it, and the word safety, in that sickening and weak speech? "Vulnerable" is lawyer code for "vile parasite," but great lawyer client. The parasite lover government lawyer bullied banks into lending huge mortgages to crack addicts. Now Holder has the nerve, calling the banks fraudulent. The lawyer is the entire cause of the current financial crisis, both by forcing bad loans, and by the total failure of regulatory oversight. Thank the lawyer if you love this financial crisis.

The lawyer must be removed by statute from all benches, all legislative seats, and all policy positions in the Executive, before the criminal law can start to work. It is in utter failure, with massive criminality nearly immunized, with massive unproven, invalid rules and regulations making criminals of everyone on earth, and a high rate of false positives among those who are convicted.

The sole explanation is the Rent Seeking Theory. The main purpose of the DOJ is worthless lawyer make work, funded at the point of a gun, and doing nothing of any value.

Scotus, you're a lawyer. Here is a test. Say the V word out loud, even by yourself, in a sound proof room. Victim. You can't. If you try too hard, emergency services might have to be called.

Posted by: Supremacy Claus | Mar 29, 2009 7:38:04 PM

Perhaps the first poster's comments might be worthy of some credence had her voice EVER been raised/heard in "protest" at the policies of Bush I and Clinton during her SEVEN years as Pardon Attorney? If memory serves, her policy "alternative" was to try to dump all petitions for commutation of sentence onto the Bureau of Prisons?

Posted by: anon | Mar 30, 2009 7:41:42 PM

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