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August 14, 2013

Lots of (mostly positive) reactions to AG Holder's big sentencing speech

In the last 48 hours, I have seen lots and lots of notable reactions and commentary in the wake of Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms.  Nearly all have been relatively positive, and I believe I have seen more expressions of concern that AG Holder did not go far enough than that he went too far in urging criminal justice reforms and in changing some DOJ policies.  Here is a sampling of some of the more high-profile and/or substantial discussions I have seen:

UPDATE:  I put together this op-ed for the Los Angeles Times explaining my basic reactions to the Attorney General speech and the paper gave it this title: "Atty. Gen. Holder plays catch-up on criminal justice: He should do more to seize the sentencing reform moment." Here is how it concludes:

Before a new course can be set, the criminal justice ship has to navigate away from the old "get-tough" course, and that won't be easy.  So it's perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them.  But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn't wait too long before sailing full speed ahead.

August 14, 2013 at 06:49 PM | Permalink


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It's all true. Eric Holder is liberal and so is the press. Whether this is news is a different story.

Posted by: Bill Otis | Aug 14, 2013 7:27:03 PM

I thought Mike Mukasey calling for the elimination of mandatory minimums on CNN was news. He was an AG and not a liberal one. Or, wait, does he not count because he was a judge before that?

Posted by: Thinkaboutit | Aug 14, 2013 8:17:34 PM

As for what Michael Mukasey said, I copied the following excerpt from a CNN article:

"Michael Mukasey, a former judge and an attorney general under President George W. Bush, said he is not a fan of mandatory minimums, but he does not support what Holder is doing. "I generally agree with the goal of getting rid of mandatory minimums," said Mukasey. "But the way to do that is to pass a law," he said in an interview on CNN's "The Lead with Jake Tapper."

Posted by: onlooker | Aug 14, 2013 9:58:07 PM

No kidding holders MM plan isn't enough to help offenders.
How many drug offenders that are eligible for MM have a criminal history score of 3 or less. Like almost zilch.. Strike 1.

How many drug offenders, are eligible for a MM. Maybe 30 pct?? Strike 2.

crap like the young case getting nailed with the ACCA just has to stop
Duck hunter gets 30 yrs. a domestic assault or prior felony with a sporting gun.
I know he sent pipe bombs to his girl friend and a judge decided to double the ACCA.

Meth offenders, psuedo is 5 times higher on the weed conv table than meth is.
Nobody responds to that statement, cause they know its as wrong as the 100:1 ratio of coke to crack was. Racial, racial...It has to be. But really it's just gutless spineless congress and the USSC wants to not look soft on crime. If blacks got a 2 level drop for crack, so should whites for meth.. Any comments boys....

ACCA charges are stackable, 5 then 25 for each successive one. Nothing out of line boys, do ya think.

Nope, if you guys really think holders half fast policy change is going to help many, you need to bend over and pull your head out.

A chosen few will benefit. Only reason some think its such a big deal is that the Feds are such a bastards on departures of any kind and the flimsiest of evidence gets you an enhancement. People are used to the over bloated Feds and a scrap here or there has
What most consider smart people jumping and flicking there ties out , oh yes it's wonderful. Well I'm telling all of you point blank, his plan falls way short.
His fast and furious exedos will be appreciated by America..

You guys need to wake up and realize that federal crimes are not ant more severe than state crimes. States are cutting back, but the Feds haven't got the memo. More pressure needs to placed on them, by making congress look bad. (Double negative)

This so called policy change is not weakening the MM in any way shape or form. Anyone who thinks so, needs to hand in their legal/beagle license.

Our very own ex judge jack camp slid under a MM I would imagine. Cocaine on his person and 2 loaded handguns beside him and his hooker friend. He presided over cases while using coke and the investigating group says no harm was done. Really.

Lets ask holder, how that came about under his watch.

We need to increase good time days to 35-40 pct to put a dent in this mess.

Posted by: MidWestguy | Aug 14, 2013 11:07:36 PM

I think everyone on every side of this issue believes Congress needs to act, not solely the AG. Is it still not newsworthy that Bush's AG opposes mandatory minimums? Watch his full interview.

Posted by: Thinkaboutit | Aug 14, 2013 11:07:53 PM

Doug --

I just saw your update. Congratulations.

The LA Times gave you more words than USA Today gave me, but I took a shot at it anyway. It's all set out here: http://www.crimeandconsequences.com/crimblog/2013/08/the-widely-read-usa-today.html

Posted by: Bill Otis | Aug 15, 2013 1:21:25 AM


I also posted this in the other thread, where we were discussing the lawless nature of this administration as it relates to MM's, immigration, and the ACA. I would love your (or anyone else's) comments:


This sure is interesting:

"In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This "extraordinary remedy" is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case "raises significant questions about the scope of the Executive's authority to disregard federal statutes.""

"The Nuclear Waste Policy Act of 1983 requires that the NRC "shall consider" the license application for the repository and "shall issue a final decision approving or disapproving" it within three years of submission.

"Mr. Obama promised to kill Yucca as a candidate and the Energy Department tried to yank the license application after his election. But an NRC safety board made up of administrative judges ruled unanimously that this was illegal unless Congress passed a law authorizing it. Mr. Obama then teamed up with Senate Majority Leader Harry Reid of Nevada to stack the NRC with anti-Yucca appointees.

Although Congress appropriated money to conduct the review, the NRC flat-out refused, in violation of the three-year statutory deadline. "By its own admission, the Commission has no current intention of complying with the law," writes Judge Kavanaugh, despite a 2011 ruling from a separate D.C. Circuit panel instructing the NRC to follow through."

"Congress did not amend the 1983 statute. "As things stand, therefore, the Commission is simply flouting the law," Judge Kavanaugh continues. "In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us," the court had no option other than the mandamus writ."


This sounds A LOT like what is going on wit the ACA and mandatory minimums. Comments?

Posted by: TarlsQtr1 | Aug 15, 2013 8:37:55 AM

TarlsQtr1 --

Gads but you are old fashioned. Don't you remember that, on January 20, 2009, they changed the words in that musty old document from, "shall faithfully execute the law..." to, "shall faithfully execute the law when you want to..."

Thought experiment: Suppose President Romney had suspended the employer mandate in the ACA. Do you think the press outlets who've been covering for Dear Leader's having done exactly that would be saying, "Oh, hey, look, it's just a matter of executive discretion. Ya know, President Romney is entitled to his priorities. Pipe down."

Is that what they would have said?

Or would they have bellowed, "Impeach Romney!!! The man is a tyrant. He's blows off duly enacted legislation simply because of his personal animus to it. The executive branch is sworn to ENFORCE THE LAW!!!"

Mind you, this is same bunch who sniffingly accuse CONSERVATIVES of hypocrisy.

Far out!!!

Posted by: Bill Otis | Aug 15, 2013 9:09:52 AM

The bunch in Washington skirts most everything these days...Seems like there is a back door for every task and decision that doesn't get DONE.

Never have I seen such a bunch of do nothings all assembled together in
1 place. Over the months, one would think the game plan they have would just seem tiresome and they would listen to the other side and make compromises....Oh well, its their job, but most likely not for long...Be election time pretty soon..

Posted by: MidWest Guy | Aug 15, 2013 9:38:06 AM

Hi Bill,

I brought up that exact scenario, along with others where a President Rand Paul decided to ignore environmental law, gun control laws, hate crime laws, banking regulations, etc.

To boil down his argument (I am sure somewhat unfairly), they can do it based on The Administrative Procedure Act and Chevron vs NRDC, which gives agency discretion to fill in "ambiguous gaps." I just cannot figure out what is "ambiguous" or a "gap" concerning a law that states: “The amendments made by this section shall apply to months beginning after December 31, 2013.”

There is notably less enthusiasm if a President Romney or Paul tried to pull the same stunts.

George Will just put out a timely editorial...


Posted by: TarlsQtr1 | Aug 15, 2013 9:47:49 AM

TarlsQtr1 --

OK, that's very informative. I'll take a look at the George Will piece right after I finish arranging my tape library of Honey Boo Boo.

Posted by: Bill Otis | Aug 15, 2013 11:21:42 AM

The "Dear Leader" stuff is amusing.

The PPACA gives the President (and secretaries involved in applying the law) broad discretion, and if President (Republican) did something similar for some other law, it would be similarly legal, though one might oppose the move on policy grounds. It also would be different if the legislation was something the President opposed, though even there, Presidents have broad discretion.

This sort of thing didn't start in 2009 and won't even when a Republican comes into power. Courts before and after also (some right, some wrong) have decided the discretion was illegitimate. Also, then, now and the future some will selectively make this about the specific person in office.

The same applies to prosecutorial discretion or did the jails fill up during the Bush years with low level marijuana offenders?

Posted by: Joe | Aug 15, 2013 11:36:42 AM

Hey, Bill.

Tape library? You are a dinosaur. Ever hear of "digital?" :-)


I ask this with absolutely no idea regarding the answer.

Has a president ignored signed legislation that gave specific dates regarding when parts or the entirety of the law would begin? Examples?

The law unambiguously states that the employee mandate is to begin on January 1, 2014. This is not a case of regulatory discretion. The DC Circuit Court of Appeals seems to agree with me on this matter, that dates in legislation must be observed (see link in my previous post). I also invite you to look at this article:


As I stated in the other thread on this topic, I am not a lawyer. So the legal basis for the administration's MM fiat is far beyond my area of expertise. However, it seems shortsighted and a violation of the intent of "prosecutorial discretion." I see the phrase as giving the prosecutor the chance to right wrongs and set priorities in INDIVIDUAL cases, not a blanket right to nullify a law passed by Congress and signed by a former POTUS. "Right" and "wrong" are not decided by what has been done in the past or what will be done in the future. To me, this is incredibly "wrong" just as his nullification of immigration law is. If this is indeed a "right" given to POTUS and his AG, it is a right worthy of only a banana republic.

Posted by: TarlsQtr1 | Aug 15, 2013 12:18:18 PM

The examples are coming too fast to even keep up with. Now the President is claiming the right to tax and spend Federal money.


"President Obama liked the idea laid out in a memo from his staff: an ambitious plan to expand high-speed Internet access in schools that would allow students to use digital notebooks and teachers to customize lessons like never before."

"There's just one little catch - the proposal costs billions of dollars, and Obama wants to pay for it by raising fees on mobile phone users."

Posted by: TarlsQtr1 | Aug 15, 2013 1:24:17 PM

Joe --

Are you claiming that Obama's decision to suspend a major part of the ACA would get the same welcome from the liberal press if a President Romney did it?

If you are, no one is going to believe a word you say from here on in, since we all know the opposite is true.

If you're not, you are conceding that liberals are big time hypocrites.

Which is it?

Posted by: Bill Otis | Aug 15, 2013 3:18:18 PM

TarlsQtr1 --

Well now that you mention it, I have indeed heard of "digital." That's one of those things sticking out from the end of your hand.

Posted by: Bill Otis | Aug 15, 2013 3:23:05 PM

Joe --

"The same applies to prosecutorial discretion or did the jails fill up during the Bush years with low level marijuana offenders?"

Your direct insinuation that the "jails fill[ed] up during the Bush years with low level marijuana offenders" is a flagrant falsehood.

I was a White House-appointed officer of the DEA for half of Bush's tenure. I know for a fact that only a small fraction of those in federal prison were (or are) there for "low level" (i.e., simple possession) marijuana offenses.

If you have numbers to prove your assertion, please post them and I will retract my statement and apologize. If not, you should withdraw it. It's flat-out false, as I strongly suspect you knew when you wrote it.

Posted by: Bill Otis | Aug 15, 2013 3:33:11 PM

Working backward.

Bill Otis misses my point -- the "or" is meant to suggest the second half is absurd. Clearly that did not occur, so discretion was applied, even though the feds easily given the letter of the law target low level offenders.

A core provision of the PPACA was something Romney supported, so if Romney did the exact same thing as Obama is doing, no, it wouldn't surprise me if the liberal press was glad, like it is glad with conservative Presidents do things they support or when it was glad when Ted Olsen supported SSM.

Prof. Adler at Volokh Conspiracy has addressed this ACA discretion topic some and others, including "Anthony" (who opposes the law on the merits) have addressed why the Administration is not breaking the law. Bush43 was provided as an example in one case. I suggest going there, since he and others described the details better. Basically, the argument is that ACA provides discretion here.

Posted by: Joe | Aug 23, 2013 2:08:46 PM

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