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September 21, 2007 - Associated Press (US)

[Attorney General Candidate] Mukasey Hit Justice Dept On Sentencing

By Lara Jakes Jordan

Return to Drug War News: Don't Miss Archive

WASHINGTON (AP) - As a judge, Michael Mukasey ridiculed the Justice Department for defending federal sentencing guidelines used to mete out prison time to criminals.

Soon, he may be leading the Bush administration's push to toughen the guidelines.

Formally nominated Friday as President Bush's pick for attorney general, Mukasey could find himself in an awkward position as Republicans seize on the 2008 elections to promote the Justice Department's crime bill, which includes mandatory minimum sentences for most federal prisoners.

Judges generally oppose the plan that limits their sentencing discretion " the heart of Mukasey's own complaint as a U.S. District Court jurist in New York's southern district.

Mukasey declared the guidelines unconstitutional in a June 1988 ruling on what would be a fair sentence for a woman who broke out of a drug treatment center. At least 87 other judges nationwide had similarly deemed the guidelines unconstitutional, he wrote.

In his 15-page ruling, much of it written in a sardonic tone, Mukasey belittled the Justice Department's insistence that the guidelines were a function of the executive branch, while the U.S. Sentencing Commission simultaneously claimed them under the judicial branch.

"A survey of the results thus far calls to mind nothing so strongly as the band of blind men describing the elephant variously as a wall, a tree or a rope, depending on which part of the beast they touched," Mukasey wrote.

Mukasey's ruling focused largely on separation of government powers. He also disagreed with the Justice Department's defense that judges could be included in an executive agency without violating the Constitution, and quoted from Alexander Hamilton's Federalist Papers to drive home his point.

"There is ample room to quarrel with the DOJ's reading of history as it relates to the extra-judicial service of federal judges, but its arguments suffer from more than bad history," Mukasey wrote.

The Supreme Court agreed in 2005 that the guidelines were unconstitutional, ruling that judges should only treat them as recommendations in deciding the length of prison terms, and not hard-and-fast rules.

In June, however, the Justice Department sent Congress legislation aimed at cracking down on rising crime rates across the country. At the time, then-Attorney General Alberto Gonzales said the bill would require prison time for nearly all criminals " and not let judges consider such penalties "merely a suggestion."

That "will strengthen our hand in fighting criminals who threaten the safety and security of all Americans," Gonzales said.

Justice officials have pointed to a growing number of lighter sentences as possible proof that crime is on the rise because criminals are no longer cowed by strict penalties. But the department's bill, one of Gonzales' top priorities, has sat untouched on Capitol Hill, and Democrats who control Congress aren't expected to approve it.

After two straight years of small but steady increases in violence nationwide, crime-fighting is expected to be a heated election-year debate in 2008. Republicans and Democrats are pointing to local but high-profile incidents " including the Virginia Tech shootings and the execution-style slayings of three college students in Newark, N.J. " to call for everything from stiffer gun control laws to cracking down on illegal immigration.

"Without further delay, Congress and the (Bush) administration need to do our part by enacting concrete reforms that will reduce crime and protect the safety of police officers and all Americans," Sen. Edward M. Kennedy, D-Mass., said this week in supporting tougher gun-control laws.

Mukasey largely has been silent about the sentencing guidelines since the Supreme Court ruled that, when handing down sentences, judges must consider the guidelines but don't necessarily have to follow them. How strongly he will push the Justice Department's plans for mandatory prison time already has piqued the curiosity of lawyers and legal experts.

"He was one of the judges who tended to follow the guidelines," said Washington defense attorney Michael Horowitz, a member of the Sentencing Commission and a former Justice Department prosecutor who argued cases in Mukasey's courtroom. "As someone who believes in the rule of law, the guidelines were the law. And he was going to read the law as it was written."

The ruling also gives a glimpse of Mukasey's wry personality during his first year as a judge.

In it, he warns of the mingling of judges and Justice Department officials who sit on the Sentencing Commission as a slippery slope to violating the constitutionally protected separation of powers. At one point, he notes that the then-Soviet Union's own Constitution promised rights that can "be broken at will," resulting in government oppression.

Mukasey also references Act 5, Scene 7 from Shakespeare's "Macbeth" without explaining why or adding comment. The scene involves Macbeth killing Young Siward with his sword. "They have tied me to a stake; I cannot fly, but bear-like I must fight the course," Macbeth laments.

"This point, or one very much like it, was made by Justice Scalia in a speech at the courthouse in Bedford, New York in October, 1987," Mukasey wrote after the Macbeth reference.

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