Mukasey Asks Congress to Block Release for Non-First Time Crack Offenders

Bump and Update: The ACLU reports on Mukasey's testimony today. The Washington Post and Sentencing Law and Policy have more.


Original Post: 2/6/08

Bad news from Attorney General Michael Mukasey today. In written testimony to be delivered at a House Judiciary Committee hearing tomorrow, he will ask Congress to block the release of crack offenders currently serving sentences except for first-time, non-violent offenders. It's unclear whether Congress would act in time.


The worst part of his idea is the first-time offender requirement. Many drug offenders have prior possession convictions. That shouldn't exclude them from the remedial and fairly minor sentence reductions instituted by the Sentencing Commission.

As to crimes of violence, past crimes of violence not associated with the crack offense which is eligible for a reduction shouldn't enter into it.

Yet, that's just what Mukasey wants:

The Justice Department estimates that two-thirds of federal inmates serving time for crack cocaine also have violent criminal histories or gun charges in their pasts. "We think it is imperative for Congress to pass legislation to address the Sentencing Commission's decision," Mukasey wrote to the House committee.

Question: If Mukasey gets someone to introduce legislation to block releases along the lines he is suggesting, will Hillary and Obama show up to vote, the way they did for FISA? And how will they vote? I won't be surprised if both (yes both) agree with Mukasey. Obama has frequently couched his support for reducing mandatory minimums and drug sentences in terms of non-violent, first offenders. Hillary has said she opposes retroactivity in principle, for safety concerns.

As I've said frequently, there's very little difference between them on drug sentencing.

When Mukasey's written testimony becomes available and I have had a chance to read it in full, I'll update this post.

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    It appears they are including both charges (5.00 / 1) (#5)
    by JSN on Wed Feb 06, 2008 at 04:28:20 PM EST
    and convictions for violent crimes. If only convictions of violent crimes are counted the percentage of those incarcerated for a drug crimes with a prior violent conviction is much smaller.

    OTOH there are not that many first-time offenders in prison for drugs. The repeat DUI and drug offenders have the highest return rates either on a new charge or a revocation of probation, parole or work release.

    They can be charged on a federal or state charge. In my county less than 1% of all drug arrests result in a federal charge. At the felony level the percentage is much higher. I suppose many county attorneys would  happily  agree to have the feds take a felony case.

    About half of the federal prisoners have a drug crime as their most serious offense (about 100,000). Probably about 90% are for trafficking leaving about 10,000 for possession or some other type of drug crime. The 19,000 eligible for sentence reduction probably include some low level street dealers. The question is how dangerous are these low level street dealers?

    My guess is that 10,000 never should have been incarcerated in the first place.

    What Mukasey fails to realize.... (none / 0) (#1)
    by kdog on Wed Feb 06, 2008 at 01:19:46 PM EST
    If you are selling a black market product, be it crack-cocaine or bootleg dvds, sadly you need a gun to protect your inventory, your business, and your life.  Because you can't call the cops when you get robbed....you are on your own.

    A drug conviction plus a gun conviction doesn't automatically equal a homicidal maniac who must be caged...it could just be the signs of a prudent businessman protecting his livelyhood.

    It seems to me that (none / 0) (#2)
    by sarcastic unnamed one on Wed Feb 06, 2008 at 03:17:08 PM EST
    if Mukasey is asking for unequal (ie., harsher) sentencing for violent and/or gun-toting crack offenders v. violent and/or gun-toting powder offenders, he should be strongly opposed.

    Parity with multiple powder offenders.

    Another Bush Lackey (none / 0) (#4)
    by squeaky on Wed Feb 06, 2008 at 03:58:39 PM EST
    Are we surprised?

    and Clinton's response? (none / 0) (#6)
    by A DC Wonk on Thu Feb 07, 2008 at 12:53:16 PM EST
    she says she's against retraoctivity in principle.

    (Just a note to show that both Obama and Clinton have their flaws here and there).

    Here, there, and everywhere..... (none / 0) (#7)
    by kdog on Thu Feb 07, 2008 at 01:40:44 PM EST
    well said wonk....the Democrat love-fest around here needs a dose of clarity once in awhile.

    The DEA is threatening landlords of Medical (none / 0) (#8)
    by kindness on Thu Feb 07, 2008 at 01:55:29 PM EST
    Marijuana  Clubs with having their properties seized as per this SF Chronicle article from this morning.

    Sorry, I don't want to threadjack but this post reminded me of it.

    Doesn't the DEA have anything better to do with their money?

    That's our money. (none / 0) (#16)
    by sarcastic unnamed one on Thu Feb 07, 2008 at 03:56:10 PM EST
    Was our money..... (none / 0) (#19)
    by kdog on Fri Feb 08, 2008 at 10:29:04 AM EST
    taken or collected at the barrel of a gun:)

    And how to pay for continued incarceration? (none / 0) (#9)
    by SeeEmDee on Thu Feb 07, 2008 at 02:06:01 PM EST
    The National Debt has mushroomed to monstrous proportions. The government can only continue to run with infusions of cash courtesy of loans from China and Japan...who aren't earning much on their investments because of the sinking dollar. The recession wolf is slavering and howling at the front door. And this clown wants to keep first time offenders in the pokey?

    Perhaps he'd like to take a pay-cut to help foot the bill for it?

    i wouldn't bet the rent money on it: (none / 0) (#10)
    by cpinva on Thu Feb 07, 2008 at 02:51:35 PM EST
    Perhaps he'd like to take a pay-cut to help foot the bill for it?

    something i'm curious about: why this focus solely on crack? with all the other illegal narcotics around, what makes this one so special?

    Because crack.... (none / 0) (#12)
    by kdog on Thu Feb 07, 2008 at 03:03:12 PM EST
    carries the most draconian sentences...thanks to the legislative wizards of the late 80's early 90's.

    Exactly (none / 0) (#13)
    by A DC Wonk on Thu Feb 07, 2008 at 03:48:54 PM EST
    Possession of only 5g of crack (which is the weight of a nickel in your pocket) gets you a 5-year mandatory minimum sentence.  (Five years!  Sixty months!)

    For cocaine, you need 500g (over a pound) to get that kind of a sentence.  Furthermore, mere possession of it is not enough, you need to be distributing, importing, manufacturing, etc.

    What's even more ridiculous: you use powder cocaine to make crack (it's inredibly simple:  you simply mix crack with baking soda and water, then boil off the water), so the big dealers, and the major suppliers, who deal in the powder, often get a smaller sentence then those further on down the chain, if those further on down have converted the powder to crack.

    It's nuts.


    Lame Duck courage? (none / 0) (#11)
    by Ben Masel on Thu Feb 07, 2008 at 02:53:19 PM EST
    Alcohol prohibition was ended not by Roosevelt's Democratic Congress, but by lame-duck Republicans on their way out.

    I'm thinking the best opportunity for substantial reform of our current failed drug policies lies with a lame duck session. 30 years ago, my then Congressman Bob Kastenmeier told me marijuana legalization would pass the House only if we could find 15 Republican co-sponsors. Time to start talking to retiring Republicans? Paging Gary Johnson.

    even if it were grounded in reality.... (none / 0) (#14)
    by A DC Wonk on Thu Feb 07, 2008 at 03:49:40 PM EST
    ... Bush would veto it.

    Not clear. (none / 0) (#17)
    by Ben Masel on Thu Feb 07, 2008 at 04:40:11 PM EST
    There was an extended internal debate on marijuana policy at least in the opening days of the Bush Administration. It took a couple months before they appointed a Drug Czar and DEA chief. Tommy, Transition tewam chief George Shultz, Powell, and Rumsfeld argued for reflorm, in at bleast Tommy's case the argument was thast they'd reap longterm political rewards.

    Gov. Johnson used to claim that a majority of his fellow Republican Governors privately agrteed with him, "including some who'd suprise you." By his tone, I inferred he meant Bush.

    Then we have the recent deep cuts in Byrne Grants, much of which goes to the Multijurisdiction Drug Task Forces.



    The sticking point is the ONDCP (none / 0) (#18)
    by SeeEmDee on Thu Feb 07, 2008 at 06:57:14 PM EST
    Not to mention all the prohibitionists, career and civilian cat's-paws, whose meal tickets ride on the continuance of prohibition.

    But their main bulwark - which is surprisingly also their main vulnerability - is the ONDCP. Several times they've been caught by the Government Accounting Office doing legally unscrupulous things like masquerading propaganda as news without telling who was fronting for it. But the most important vulnerability is the ONDCP's charter which requires that it fight against any drug legalization measures...and thus, perforce, requires it to use taxpayer's funds to lobby against taxpayer-originated referenda, thus interfering in the democratic process.

    Representative Waxman's Committee
    has already had plenty of time to investigate this; I can only believe that they are withholding further action until after the election. If that is so, and if they are serious about reform, the ONDCP could become the first target of a drive to reform government practices.

    ONDCP's blatantly partisan and anti-democratic actions, using taxpayer's dollars to commit them, are outrageous enough that when the average citizen hears of this, they might take umbrage at this misuse of their money to nullify their vote. This could in turn lead to something that has never happened in this country during the century long DrugWar, and that is a national debate on why have one at all. Such a debate would lead inevitably to public knowledge of the racist origins of the DrugWar...a bullet the DrugWarriors heretofore have been able to dodge.


    What comes around goes around (none / 0) (#15)
    by SeeEmDee on Thu Feb 07, 2008 at 03:53:05 PM EST
    And, yes, history does repeat itself; it's just the names of the actors who change, not the roles.

    Ben, it, wasn't just a (vengeful) lame duck Republican Congress that voted for repeal; it was also because the Great Depression had caused so many to lose their jobs that the tax base shrank. Uncle Sam needed revenue, and chose to bite the alcohol flavored bullet rather than continue the 'Great Experiment' in noble penury. This article explains why.

    The analogy with today should be obvious: we can no longer afford the DrugWar. The main reason why we are hearing of these prison releases is that, like back then, the difference between what the prohibitionists want to do and what the nation can afford to let them have is becoming ever greater. We cannot afford to staff or supply the prisons that we foolishly built to try to incarcerate our way out of a medical problem. So, now the financial chickens have come home to roost.

    The drug prohibitionist rubber has met the fiscal road, and its' getting shredded. It only remains to be seen whether the costs of attempting to maintain the untenable become a political issue, as more and more people get pink slips and need the money being urinated into the wind with DrugWar expenditures for unemployment insurance.

    The next President and Congress, no matter how they try to avoid it, will eventually be forced to face the issue. It's that, or shoulder part of the blame if we experience another economic 'adjustment' and have the kinds of social conditions our grandparents remember, and none too fondly...