A tempest in a teapot

Read Doug Berman’s post today entitled: Was it “disrespectful” to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?  Judge Pryor, who sits on the Sentencing Commission, is upset that AG Holder jumped the gun and therefore screwed with separation of powers rules when he told his prosecutors to allow “non-violent” offenders to argue for application of a lower drug Guideline based upon a proposed Guideline change but before the Sentencing Commission adopted the change (which it did unanimously on Thursday).

Here’s my very abbreviated view:

Judge Pryor’s lament (and those of others like him) is silly. We sentencing judges aren’t obligated to do anything because the AG and his munchkins don’t “oppose” something. And, since the Commission unanimously adopted the rule change anyway, why should we be concerned at all? Hell, all the major players agree with the change. We in the federal judiciary have enough to worry about without erupting over Holder’s alleged “lack of respect.” By the way, I think the AG is a weak, weak sister, but that’s an entirely different matter.


8 responses

  1. When I read Doug’s post, I presumed that Judge Pryor was confusing his role on the Sentencing Commission with the role of the judiciary in sentencing, for the very reason you raise. The govt doesn’t opposed? Who cares? The govt can argue or not, but the responsibility to sentence remains with the court.

    Holder’s order, on the other hand, can be seen as taking the wind out of the Sentencing Commission’s sails, and given that it’s post-Booker relevance is dubious at best, that might smart a bit. After, they’re still working on the guidelines and taking them seriously, even if no one else does.

    But your far more interesting assertion is that AG Holder is a “weak, weak sister.” Do tell?

  2. SHG,

    As I said, discussion of Holder’s weakness is a discussion we might have on another day. But, here’s a brief overview of my complaint.

    In my view, the best AGs are those who see their role as uniquely driven by nonpartisan (purely legal) considerations and, within reason, separate and apart from the political positions of the President. My impression, which cannot be proven empirically, is that Holder’s positions on really important criminal justice issues are set by the pols in the White House.

    All the best.


  3. My experience as a military officer: I operated fairly often on the basis of draft regulations. My superiors wanted results, and didn’t care so much about i’s crossed and t’s dotted. At least not the bureaucrats placed in positions of authority over me. Of course the occasional bureaucratic protocol toes got stepped on. They gimped along OK. In the end, the only reg that counted was Air Force Reg 1-1: Don’t do anything stupid.

    As to Holder, again drawing on my military experience, the best staff officers were mostly transparent to the system, only facilitating it. They didn’t inject themselves into the forefront.

    Eric Hines

  4. If I understand the application of 18 USC 3582 correctly, when the Guidelines amendments become effective on November 1, 2014 (and I see no reasonable basis to think they will not) they will support a petition for resentencing under 3582. A district judge that addresses this issue now will not have to do so later, a step that will save both the court and the U.S. Attorney’s offices around the country time and resources. This makes sense to me. Am I missing something?

  5. Robert,

    You aren’t missing a thing. Doug Berman makes the same point. Now, I should say that the Commission could decide not to make the change retroactive but that too would spawn litigation.

    All the best.


  6. Not quite; the Commission hasn’t decided whether the amendment will be retroactive yet. That will happen sometime over the summer.

  7. Jay,

    True enough. Given the Commission’s past practice with the “crack” amendments, wouldn’t you say that is probable that these amendments will be applied retroactively by the Commission? In any event, Holder’s memo avoids the problem of retroactivity for pending cases to the extent judges believe that application of the new Guideline now is a good thing.

    All the best.


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