Two federal judges on the U.S. Sentencing Commission said Thursday that Attorney General Eric Holder stepped “outside the legal system” and exceeded the authority of the executive branch by sending “improper instruction” to federal prosecutors to reduce drug sentences before they were officially approved by either the commission or Congress. “I have been surprised at the attorney general’s steps taken to proceed with this reduction outside of the legal system set up and established by the Sentencing Reform Act of 1984,” Judge Ricardo Hinojosa, the commission’s vice chair, said during a public hearing in the Thurgood Marshall Federal Judiciary Building in Washington. “As you all know, the commission in the act is given the authority to promulgate and amend guidelines on a yearly basis. And in the act itself, Congress has preserved its right to reject any potential promulgation of, or amendment to, any guidelines made by the commission itself after the commission has acted.
“Meaning that if Congress does not reject a guideline amendment, it will not go into effect until November 1st of this year if we vote in favor of this amendment.,” said Hinojosa, who is also the chief judge of the SouthernDistrict of Texas.
“When the attorney general testified before us, he failed to mention that the night before, at around 11 pm, the department had ordered all of the assistant U.S. attorneys across the country to (and it’s not clear to me whether it was supposed to be not oppose or to argue for, in fact the U.S. attorneys in front of my court have said they’ve been asked to argue for) the two-level reduction in all drug trafficking cases before the commission has acted and before Congress has had the opportunity to vote its disapproval of the commission’s actions, if Congress is so inclined, which is certainly the right that they have preserved for themselves in the Sentencing Reform Act of 1984,” Hinojosa said.
“It would have been nice for us to have known and been told beforehand that this action had been taken, so any of us who would have liked to have asked the attorney general under what basis under Title 18… the courts were being asked by the Justice Department to follow this request. “If it was because the attorney general had spoken in favor of this proposal ,that is a dangerous precedent because attorney generals in the past have consistently expressed opinions to the commission on guideline promulgation and amendments, many times for an increase, and sometimes for a lowering of the penalties.
“But none have ever then asked the courts to proceed with increases or decreases simply because the attorney general has spoken in support of them before the commission has acted and before the Congress has exercised its statutory right not to act,” the vice-chairman said.