- The Washington Times - Thursday, April 10, 2014

The U.S. Sentencing Commission approved Thursday an amendment to reduce sentencing guidelines for certain nonviolent drug offenses, a unanimous decision that nonetheless included a sharp rebuke of Attorney General Eric H. Holder Jr. for directing federal prosecutors to use the guidelines before they had been approved.

Coming amid bipartisan efforts to better manage corrections, the amendment is expected to reduce the federal prison population by 3 percent — or 6,550 inmates — over the next five years by lowering the average sentence for certain drug traffickers by about 11 months. Nearly half of the more than 216,000 federal inmates are serving time for drug-related crimes, and the Justice Department spends $6.4 billion annually to maintain prisons.

Overall, the U.S. spends more than $80 billion a year on corrections.

Under the amended guidelines, judges would be allowed to impose sentences lower than the mandatory minimum for nonviolent drug-related offenses. Current guidelines are higher than the mandatory minimum sentences judges are permitted to issue. The commission said the amendment should produce lower sentences for about 70 percent of nonviolent drug traffickers.

“Our country is slowly but steadily reversing the damage done by the failed, racially biased war on drugs,” said Jesselyn McCurdy, senior legislative counsel for the American Civil Liberties Union. “The actions taken by the Sentencing Commission today are another positive move toward reducing unnecessarily long sentences that have led to bloated, overcrowded prisons. Our criminal justice system is smarter, fairer, and more humane than it was a year ago, and we need to make sure momentum continues in the right direction.”

The amendment now goes to Congress, which has 180 days to make any changes. If lawmakers do nothing, the resolution will become effective Nov. 1.

Congress in 2010 passed the Fair Sentencing Act, which narrowed the disparity in prison sentences between crack cocaine and powdered cocaine. Possession of crack cocaine, abused mostly by blacks, incurred longer sentences than possession of similar amounts of powdered cocaine.

In addition, Sens. Richard J. Durbin, Illinois Democrat, and Mike Lee, Utah Republican, last year introduced the Smarter Sentencing Act, which would permit judges to issue shorter sentences for some nonviolent drug-related crimes.

Though unanimous, the Sentencing Commission’s decision came with biting criticism of Mr. Holder, who endorsed the amendment during testimony before the commission last month.

In August, Mr. Holder announced his Smart on Crime initiative, seeking to “reserve strict, mandatory minimum sentences for high-level or violent drug traffickers,” a statement on his website says.

He launched the initiative without the approval of the Sentencing Commission and told federal prosecutors in an internal memo in March not to press judges to impose the longer sentences in the guidelines if defense attorneys for drug offenders seek shorter sentences that would be permissible under the new policy.

“I regret that before we voted on the amendment, the attorney general instructed assistant United States attorneys across the nation not to object to defense requests to apply the proposed amendment in proceedings going forward,” Judge William Pryor said during Thursday’s commission hearing. “That unprecedented instruction disrespected our statutory role as an independent commission in the judicial branch to establish sentencing policies and practices under the sentencing reform act, and the role of Congress as the legislative branch, to decide whether to revise, modify, or disapprove our proposed amendment.”

Chief Judge Ricardo Hinojosa speculated about Mr. Holder’s legal justification, saying no previous attorney general has “ever asked the courts to proceed with the increases or decreases simply because the attorney general has spoken in support of them before the commission, before the commission has acted and before Congress has exercised its statutory right not to act.”

Moreover, Mr. Holder had infuriated federal prosecutors by not waiting for the Sentencing Commission’s approval.

“We do not join with others who regard our federal justice system as ‘broken’ or in need of major reconstruction,” the National Association of U.S. Assistant Attorneys said in a letter to Mr. Holder in January. “Instead we consider the current federal mandatory minimum sentence framework well constructed and worth preserving.”

Mr. Holder’s decision to act before the independent agency’s decision has led many on Capitol Hill to question executive overreach.

“The attorney general’s directive, along with contradicting an act of Congress, puts his own front-line drug prosecutors in the unenviable position of either defying their boss or violating their oath of candor to the court,” Rep. Bob Goodlatte, Virginia Republican and chairman of the House Committee on the Judiciary, said Tuesday. “Over the last year, we have all witnessed an extraordinary level of executive overreach by the Obama administration. Time after time, this president has pushed the limits on executive power beyond their constitutional boundaries.”

But the Sentencing Commission’s ex-officio member, Jonathan Wroblewski, expressed support for Mr. Holder’s actions, saying the attorney general was upholding the legal principle that states that sentencing should be sufficient but not greater than necessary.

“Just as prosecutors have discretion to adopt policies to increase sentences, they also have discretion to adopt policies that would make sentences more fair and I feel that that’s what Holder was doing, so I would disagree with the commissioners that his actions were premature,” said the ACLU’s Ms. McCurdy. “I think that Holder was doing what he could do within his authority to level the playing field.”

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