Thursday, February 07, 2008

Mukasey's crack testimony and reactions from public policy groups

AG Mukasey's take on crack retroactivity appears in the last few pages of this written testimony submitted today to the House Judiciary Committee, which this morning held an "Oversight Hearing of the Department of Justice."  Here is the key concluding paragraph of the crack part of his testimony:

[W]e think it is imperative for Congress to pass legislation to address the Sentencing Commission’s decision.  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. Instead, our objective is to address the Sentencing Commission’s decision in a way that protects public safety and addresses the adverse judicial and administrative consequences that will result from retroactive application of these lower guidelines.  We would appreciate the opportunity to work with this Committee and this House to address the retroactivity issue in an expedient manner while beginning discussions on changes to the current statutory differential between crack and powder cocaine offenses.

Unsurprisingly, public policy groups like FAMM and the ACLU are not impressed and they've got press releases out responding to the AG's assertions.  The FAMM release is here, and the ACLU release is here.

Some recent related posts:

February 7, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

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 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (11) | TrackBack

Wednesday, February 06, 2008

AG Mukasey comes out swinging on crack retroactivity

This ABCNews story and this AP piece both report that Attorney General Michael Mukasey is going to ask Congress to intervene with the retroactive implementation of the new crack guidelines.  Here are a few particulars from a big new story on the crack sentencing front:

The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release....

In testimony he's expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately. "Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday.... 

Mukasey will be testifying before the House Judiciary Committee, whose ranking member, Rep. Lamar Smith, R-Tex., has introduced legislation to halt the retroactive release. "Many of these criminals are dangerous repeat offenders who possessed firearms during their crimes," Rep. Smith said in introducing the measure. A senior Justice Department official described the measure as uncompromising on Wednesday. "The Lamar Smith bill is a straight-up bill opposing retroactivity," the official said....

With less than 30 days to pass legislation before the first offenders are eligible for release, it is unclear how quickly Congress will move.

As I have noted in prior posts (some of which are linked below), it seems very unlikely that Congress will, at this late date, have the time or inclination to do much about the unanimous crack retroactivity decision coming from the US Sentencing Commission back in December.  Nevertheless, the AG's testimony can (and should) turn this into an interesting political issue, especially because now all three serious presidential candidates are members of Congress.

Some related posts:

February 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Saturday, January 19, 2008

Fascinating (and first?) crack retroactivity opinion from SDNY

Thanks to this post from Harlan Protass at the Second Circuit Sentencing Blog, it appears that SDNY District Judge Gerard Lynch earlier this week became the first judge to issue an opinion report revisiting a crack sentence based on Kimbrough and the new retroactive crack guidelines.  Here are snippets of Harlan's effective write-up of the ruling (which goes by United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)):

While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months. He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines. 

The opinion in Polanco seems to have been issued sua sponte, and it ends with these interesting sentiments and instructions:

The Sentencing Commission has purported to limit the sentencing court's authority to reduce a sentence, emphasizing that, in its view, the reduction authorized by § 3582(c)(2) and the Commission's policy statement "do not constitute a full resentencing of the defendant," and prohibiting a reduction to a sentence "that is less than the minimum of the amended guideline range."  The effectiveness of these limitations is yet to be tested; it would be, to say no more, ironic if the relief available to a defendant who received a sentence that is now recognized to have been unconstitutional because imposed under mandatory guidelines based on non-jury fact findings and unwise because the guideline under which he was sentenced was excessively severe, can be limited by a still-mandatory guideline.

It is not likely, however, that the complex legal issues theoretically presented by the Commission's effort to extend limited relief to inmates in Polanco's situation will be tested in his case. The Commission has notified this Court that Polanco remains incarcerated, and that if his sentence is reduced as authorized by § 3582(c)(2) and the amendment to the crack guidelines, he may well be eligible for release within a matter of weeks following the March 3, 2008, effective date of the retroactivity policy. If this is so, there would be little need to explore the legality of any relief beyond that expressly authorized by the Commission's policy statement; the only question is whether the Court should grant the relief thus authorized.

Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008.  Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate.  Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.

Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008.  In view of the potential urgency of the situation, these deadlines will not be extended.

It will be especially interesting to see if the Government submits any opposition and what its filing, if there is one, will say about broader retroactivity issues.  Whatever the government might say, Judge Lynch's work here confirm my sense that some serious crack March Madness is in the works for the federal courts.

January 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack