Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee - Fiscal Year 2009 Budget for the Department of Justice

Interview

Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee - Fiscal Year 2009 Budget for the Department of Justice

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REP. HAROLD ROGERS (R-KY): Mr. Chairman, thank you.

General, welcome.

ATTY GEN. MUKASEY: Thank you.

REP. ROGERS: I want to ask you about the recent decision by the Sentencing Commission that -- for crack cocaine offenders that allows the offenders imprisoned prior to November '07 to petition a federal judge to have the sentences retroactively reduced accordingly, since the sentencing guidelines had employed a 100-to-1 ratio that treated 100 grams of powder cocaine the same as one gram of crack cocaine for purposes of sentencing convicted cocaine offenders. My questions to you relate to that. What impact will that decision have on drug- related and violent crime in the U.S. and what impact will it have on the prosecution of cocaine offenders in the future?

ATTY GEN. MUKASEY: I don't want to be alarmist about this, but the fact is that amending -- as you know, we took the -- we were against the amendment of the guidelines retroactively for a number of reasons. First of all, crack offenders, because of the nature of that business, were among some of the most violent offenders in the prison system. To release them, prematurely, we thought, without the benefit of reentry programs and other programs designed to reintroduce them to society in a way that minimizes the chances of recidivism was a mistake.

Secondly, it was in the large, unfair to take the cohort probably least deserving of a retroactive application of the optional feature of the guidelines that has now been read in by the Supreme Court and give that group the benefit of optional application of the guidelines, whereas others were in on mandatory sentences that were going to hold regardless. Third, the sentences that had been imposed on those folks were the result of cases that had been built in large measure on the assumption that the crack cocaine sentences were what they were going to be.

We answered pleas from communities where people were literally being held hostage by the presence of violent crack dealers in their communities. We went in, we made cases based on the crack statutes and the crack guidelines as they existed at the time -- were able to forego problems that might be presented, for example, by figuring out who in the gang was responsible for the weapons at the stash house and so forth, and made cases that were built on the existence of the guideline system as it was at the time. Those sentences are now being reconsidered with other considerations in mind and it seems that we did a fairly -- a substantially good job at that and to the point where the concern has now turned from the communities that were besieged to the people who are in prison. And we just think that was a mistake for those reasons.

The numbers are going to accelerate as these people come out. I -- frankly, I hope predictions of dire results are wrong. But it's not hard to see that people who come out after a crack sentence are going to go back to their neighborhoods and they're going to find one of two things. Either the spot they occupied is not occupied, in which case it's back to business or the spot is occupied, in which case there may very well be violence.

REP. ROGERS: Well, I share your worry and fear that the worst may happen. According to the Sentencing Commission, about 19,500 inmates sentenced between 1991 and 2007 would be eligible to seek a reduced sentence and the average sentence reduction would be 27 months or about 17 percent sentence reduction.

That's a big number, 19,500, crack offenders thrown back into our cities and communities. That's a rather large number, is it not?

ATTY GEN. MUKASEY: It's a big number. And I should point out that so far as the reduction you spoke of, that is, I think, based on the assumption that the reduction would be limited to a two-point adjustment. Once a person like that comes up for his sentencing, the level of the reduction really depends on a decision by the judge, the guidelines being optional at this point. If the judge can provide a reason, the judge can go down as far as he or she wants. So that assumes only two points; it could be more.

REP. ROGERS: So have these requests already -- are they being made already?

ATTY GEN. MUKASEY: They are being made. In fact, in one jurisdiction, as soon as the new retroactive guidelines were announced, the judge didn't wait for the effective date. He said that because the effective date is itself optional, he might as well do it right now, and did it.

REP. ROGERS: How many have been released so far?

ATTY GEN. MUKASEY: So far, I can't give you a hard number. I'll try to find that. It was three in that case.

REP. ROGERS: My information as of March the 5th was that more than 400 requests have been processed by BOP, and they're already releasing inmates. Do you know how many would be eligible for release in the near future?

REP. OBEY: Last question.

ATTY GEN. MUKASEY: I think the number is around 1,600.

REP. ROGERS: My information is 4,000 inmates would be eligible for release within one year of March 3rd, '08.

ATTY GEN. MUKASEY: I was working with a smaller near future.

REP. ROGERS: Yeah.

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