As can be seen in Doc Berman’s two posts,  here and here, on Judge Mukasey’s fight against that ultra-liberal gang, the Sentencing Guidelines Commission, there is a problem with the government’s rhetoric.  Now that the crack to powdered cocaine ratio has been reformed (somewhat) from 100 to 1 to about 50 to 1, on an inexplicable sliding scale, Judge Mukasey is crying that the sky is falling.  It just doesn’t follow.

The first scream of fear is that it will release “violent” criminals into society. 

In testimony he’s expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately. “Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide,” Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday…. 

These are individuals who were convicted of crack offenses.  If they are “violent”, then they should have been tried and convicted for crimes of violence, making their crack sentences secondary to their sentences for violent crimes.  If they don’t stand convicted of violent crimes, or they have completed the sentences for their crimes of violence such that they are only remaining incarcerated because of the crack portion of the sentence, then there’s no issue.

In America, we don’t keep people in prison because of unproven, untried and unconvicted allegations of incipient violence.  This is true even when we label prisoners as “gang members,” an epithet one step below mass murderer in the publics’ mind.  While I can appreciate as well as the next guy how much fun it is to smear individuals with collective blame, there’s still this bone in my head that says, “but you need to convict somebody first.” 

The entire scheme of tarring these defendants, who have not done easy or brief time under anyone’s rational view, with vague and unsubstantiated claims of violent tendencies is far beneath Judge Mukasey’s dignity.  He knows better, meaning that he’s busily parroting the administration’s talking points.  What a good soldier he is.  Too bad he makes no sense.

Next, we have this quote, which raises some really interesting questions:

The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release….

So these prisoners have been in the system for a decade and now the government’s argument is to hold them longer so that they can “take part in educational, rehabilitation and prisoner re-entry programs?”  What has our brilliant Bureau of Prisons been doing with them all this time? 

This is serious.  Is this an admission by our Attorney General that we warehouse prisoners and nothing more?  Is this a concession that we place defendants into the United States Bureau of Prisons, individuals who are in need of education and rehabilitation, and they simply fail to do so?  Then is our prison system a corrupt failure, incapable of releasing prisoners back into society with the tools necessary to live productive, law-abiding lives?

One would suspect that Judge Mukasey was fighting against the decriminalization of crack based upon the rhetoric beings tossed about, rather than the mere partial rationalization of crack to powdered cocaine.  I can’t help but wonder if this is just an effort to use subterfuge to remind Congress that crack crimes are committed primarily by blacks and Hispanics, while powdered cocaine was preferred to whites.  This is the good drug/bad drug distinction that gets the nod and wink from government based upon implicit tacit prejudice.

Bear in mind that the reforms, which still maintain a substantial enhancement for crack over powdered cocaine despite the fallacious claims that crack was so much more potent, so much more evil, so much more black, came via the United States Sentencing Guidelines Commission, the same group that Congress trusted so much that it took sentencing out of the hands of judges for 20 years.

Sorry, but this one doesn’t even come close to flying.  Judge Mukasey may be a good soldier to a disgraced administration, but this is just irrational.