Mukasey may try to derail early releases

Times Staff Writer

Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders.

But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March.

The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon.

The fast-moving clemency program has drawn criticism from the Justice Department. On Friday at a briefing with reporters, Mukasey renewed his personal concern that the potential release of so many prisoners -- up to 1,600 in March alone -- could cause violent crime to spike in cities across the country.

“We’re going to try to do whatever we can to mitigate it,” Mukasey said. “We would obviously like to see something done about something that we think was unwise in the first place.” Mukasey raised the possibility of federal legislation to block the sentence reduction program but acknowledged it would face trouble in the Democratic-controlled Congress.


In his first appearance as attorney general before Congress, scheduled for Wednesday, Mukasey is expected to be peppered with questions on issues including the status of a department investigation into the destruction of CIA interrogation tapes and his views on the limits of torture -- an issue that nearly tripped up his nomination by President Bush to succeed Alberto R. Gonzales at the Justice Department last fall.

Mukasey has refused to say whether he believes that waterboarding -- an interrogation method simulating drowning that dates to the Spanish Inquisition -- is illegal. Democrats on the Senate Judiciary Committee have put the former federal judge on notice that they plan to interrogate him about his views on the subject at the oversight hearing.

Mukasey promised lawmakers at his confirmation hearing in October that he would assess an earlier Justice Department legal opinion that reportedly found the controversial technique to be lawful. He declined to say Friday what he has concluded about that opinion and whether he would share it publicly with the committee.

The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences. The U.S. Sentencing Commission approved the reductions in December. The unanimous vote by the bipartisan agency had the effect of narrowing, but not eliminating, sharp differences in sentences under federal law for defendants caught with crack versus powder cocaine.

In the mid-1980s, Congress made sentences for crack dealers much longer because of a belief that the drug, a crystallized form of cocaine that is smoked rather than inhaled, was more addictive and contributed to rising street crime. The drugs have since been proved to be chemically identical; some criminologists believe the tough sentences may have actually increased rather than reduced crime.

The issue has also long been a concern to civil rights organizations: About 85% of those eligible for release are African American.

Mukasey said he still had major concerns. “Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out,” he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release.

“None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out,” he said. “And that’s a cause of anxiety.”

Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders.

Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges. He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.

“If there is a suggestion that up to 1,600 people are going to be summarily dumped onto the streets, that should not happen and certainly need not happen,” Wax said.

Even though the sentencing agency had set March 3 as the effective date for the rule changes, Wax’s office was able to convince judges that they need not wait to consider the reductions because of recent Supreme Court decisions freeing up judges’ sentencing powers.

“The judges had the authority to act if they believed it was the right and fair thing to do,” Wax said.