Two federal judges on the U.S. Sentencing Commission said Thursday that Attorney General Eric Holder stepped “outside the legal system” and exceeded the authority of the executive branch by sending “improper instruction” to federal prosecutors to reduce drug sentences before they were officially approved by either the commission or Congress.
“I have been surprised at the attorney general’s steps taken to proceed with this reduction outside of the legal system set up and established by the Sentencing Reform Act of 1984,” Judge Ricardo Hinojosa, the commission’s vice chair, said during a public hearing in the Thurgood Marshall Federal Judiciary Building in Washington.
“As you all know, the commission in the act is given the authority to promulgate and amend guidelines on a yearly basis. And in the act itself, Congress has preserved its right to reject any potential promulgation of, or amendment to, any guidelines made by the commission itself after the commission has acted.
“Meaning that if Congress does not reject a guideline amendment, it will not go into effect until November 1st of this year if we vote in favor of this amendment.,” said Hinojosa, who is also the chief judge of the Southern District of Texas.
“When the attorney general testified before us, he failed to mention that the night before, at around 11 pm, the department had ordered all of the assistant U.S. attorneys across the country to (and it’s not clear to me whether it was supposed to be not oppose or to argue for, in fact the U.S. attorneys in front of my court have said they’ve been asked to argue for) the two-level reduction in all drug trafficking cases before the commission has acted and before Congress has had the opportunity to vote its disapproval of the commission’s actions, if Congress is so inclined, which is certainly the right that they have preserved for themselves in the Sentencing Reform Act of 1984,” Hinojosa said.
“It would have been nice for us to have known and been told beforehand that this action had been taken, so any of us who would have liked to have asked the attorney general under what basis under Title 18… the courts were being asked by the Justice Department to follow this request.
“If it was because the attorney general had spoken in favor of this proposal ,that is a dangerous precedent because attorney generals in the past have consistently expressed opinions to the commission on guideline promulgation and amendments, many times for an increase, and sometimes for a lowering of the penalties.
“But none have ever then asked the courts to proceed with increases or decreases simply because the attorney general has spoken in support of them before the commission has acted and before the Congress has exercised its statutory right not to act,” the vice-chairman said.
Judge William Pryor, who sits on the 11th Circuit Court of Appeals, also rebuked Holder for preempting the commission.
“Like Judge Hinojosa, 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 sentencing proceedings going forward,” Pryor said.
“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.
“We do not discharge our statutory duty until we vote on a proposed amendment, and Congress, by law, has until November 1st to decide whether our proposed amendment should become effective. The law provides the executive no authority to establish national sentencing policies based on speculation about how we and Congress might vote on a proposed amendment.
“I appreciate the attorney general’s personal appearance before the commission last month, and his helpful comments in support of this amendment,” Pryor added. “But I hope that we can avoid int the future the kind of improper instruction that he sent federal prosecutors before we voted on the amendment.”
Pryor also pointed out that a previous amendment to the Fair Sentencing Act included a “safety valve” that allows low-level offenders to plead guilty and receive reduced sentences. The Justice Department estimates that lowering sentences will reduce the federal prison population by 6,500 inmates over the next five years.
The commission had been deliberating since last summer on recommendations to amend federal sentencing guidelines in an effort “to reduce the costs of incarceration, and reduce prison populations without endangering public safety.”
Commissioners voted unanimously on Thursday to recommend the reduced sentences the Justice Department supported, which would shave an average of 11 months off the prison terms of some drug offenders. Both Hinojosa and Pryor voted for the amendment, which Pryor pointed out “maintains all statutorily mandated minimum sentences” and “respects the primary role of Congress in establishing the boundaries for sentencing drug offenders.”
Several other amendments, which were published in the Federal Register on Jan. 17, 2014, were also passed, but the one reducing sentences for drug offenders, who make up nearly half of the federal prison population, elicited more than 20,000 responses from the public, commissioners said.
Holder testified at the commission’s previous hearing on March 13th, telling commissioners that low-level, non-violent offenders should “face sentences appropriate to their individual conduct, rather than strict mandatory minimums.” (See sentencing cmsn.pdf)
“The system was not perfect as it existed before, and it is not perfect as it exists now and under the reforms that I have implemented,” Holder testified. “But what we want to do is to work with the commission,” he said a day after sending his sentencing memo to federal prosecutors.
“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” said William Otis, adjunct professor of law at Georgetown University Law Center.
Under federal law, Congress, has six months to vote the amendments down. In the absence of congressional action, they will become law on November 1st.