Monday, April 14, 2014

Judge Pryor says judicial branch disrepected by AG Holder

Some fireworks from the Sentencing Commission last week when 11th Circuit Judge Pryor said that AG Holder disrespected the judicial branch by not opposing the proposed two level decrease in the drug guidelines. More from NLJ:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“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,” Judge William Pryor, Jr. said at a public hearing in Washington. “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 of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“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,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

I'm not sure I see the disrespect or the separation of powers issues. The Attorney General can tell his prosecutors what sentences to seek; in fact, he can even go so far as to pick and choose what cases to prosecute. I see the judges' role as a check on the prosecution power in seeking sentences that are too high, not too low. This is an adversary system, so if the executive branch says that a particular sentence is too high, I'm not sure how that is disrespecting the judicial branch. As an aside, the guidelines aren't even based on any empirical data; they are simply made up numbers -- and the Commission voted unanimously to reduce those made up numbers. Had Holder not told his prosecutors to stop seeking the higher sentences, we'd see a flood of 2255s, along with appeals, and I'm sure the judicial branch wouldn't be happy about that.

Judge Marra's sentencing of Christopher George last week demonstrated how the judiciary rightly checks the government. The prosecution asked for a third off of George's sentence for cooperation and the defense asked for way more. Judge Marra correctly said no and gave much less -- about 20%. From Paula McMahon the Sun-Sentinel:

Christopher George, whose highly successful pill mills in Broward and Palm Beach counties made about $40 million, was hoping Friday that his cooperation with prosecutors would earn him a big break on the prison term he is serving.

Though the inmate wasn't in court to witness it, prosecutors formally recommended that he should get close to six years shaved off his 17 1/2 year federal prison sentence and told the judge that they wouldn't object to him getting as much as a 50 percent sentence reduction.

But U.S. District Judge Kenneth Marra was not going for anything even close to that.

"I'm not sure that I want him back out on the streets as quickly as everyone here seems to want — he's a dangerous person," Marra said.

Recalling George's boastful testimony last summer in the trial of two doctors he hired to prescribe massive amounts of painkillers to addicts and other drug, the judge said the former Wellington twin was "proud of being a criminal."

"He was proud of what he did. He was just upset that he got caught," Marra said.

The judge, who has granted sentence reductions for several other co-defendants who helped the prosecution, reminded prosecutors and defense attorney Fred Haddad that he could refuse to reduce George's sentence by even one day.

But mindful that prosecutors investigating tough cases often need the help of cooperating criminals — who will only do the right thing if they know they will receive some kind of reward — Marra said it would be "unwise and damaging to the criminal justice system" to give George no credit at all.

After a long silence, Marra ruled that it was appropriate to take 3 1/2 years off George's prison term – which cuts his punishment to 14 years. Federal inmates usually serve about 85 percent of their sentences, with time off for good behavior.


Anonymous said...

This is clearly a political charge in line w/ "conservative" talking points that this administration has no respect for the rule of law. Pretty outrageous statement from the USSC.

Anonymous said...

the only way it is disrespect is if you assume, as pryor does, that defendants should get the maximum allowable under his stupid guidelines and that they should be mandatory. he is wrong in both respects. clown.

Anonymous said...

Has Pryor ever sentenced a defendant? Seems to be sad that he has not.

MC Waste Services, Inc said...

Assume Judge Marra was rightly discusted by George's actions during the case, what would the chilling effect have been? Marra had to play ball and George was able to force his hand. This is what is really chilling, defendants under rule 35 get a free lick at bending the rules and judges are handcuffed by the "chilling effect." Ubly day for rule 35.

MC Waste Services, Inc said...

The real reason judge Marra couldnt give George no credit is because Marra denied a defense motion on george's tampering with a witness by obtaining information regarding the testimony in the trial via his father who was sitting in on the trial and reporting back to george what as going on. Marra couldnt hammer george for these actions while at the same time having denied the defense motion. "Dangerous guy" really means almost blew the govt case by his actions.

MC Waste Services, Inc said...

two Methodist and a Catholic were killed by the shooter. Is this therefore still a hate crime?

MC Waste Services, Inc said...

FEDERAL COURT ASSAULT ON PRE-TRIAL RELEASE MUST STOP ALREADY! Same crime, state court gives bond, federal court denies bond,,0,4855496.story

crafty logic at work. Stop it already!

Anonymous said...

Pryor's position is misguided. The government indicts and prosecutes and sometimes part of that territory is deciding what, from a sentencing perspective, makes sense for a class/category of crimes. The Guidelines are advisory anyway so how can the government be disrespecting the judiciary's role when that role (as embodied purportedly in the guidelines) is not binding on the sentencing judge? What's Pryor's argument, "you're not doing what we advise you to do?" That said, AUSAs too often are willing to play loosey goosey with the guidelines in order to avoid the more intellectually honest approach of conceding that a guideline enhancement/provision applies and seeking a variance under 3553. The latter requires supervisory approval and has the (alleged) stigma of "not looking good."

Ultimately, the judiciary's check on sentencing is multi-layered. First at the district court under s.3553 and second at the appellate level. Pryor should be content with that, and trust district court judges to do what they think is right--the district court judges are really the ones with final say anyway.