Mukasey and Separation of Powers

22 09 2007

An Associated Press article about Judge Michael Mukasey’s views on federal sentencing guidelines highlights his appreciation, even if its a limited one, for the separation of powers.

At the height of their power, many law-and-order conservatives of the 1980’s actively sought to pass laws in Congress and state legislatures establishing a minimum penalties judges should impose on convicted criminals. Federal guidelines are proposed by the United States Sentencing Commission in an effort to reform federal sentencing.

Many proponents believed the sentencing guidelines when followed lead to a reduction in crime. Additionally, the guidelines will reduce fewer repeat offenders since they would be certain as to what their sentencing fate would be if caught, proponents say.

Opponents say, it unconstitutionally deprives judges of their discretionary power, and grants prosecutors more power in the process in pursuing certain charges. Sentencing guidelines focus more on punishment rather than rehabilitation and have contributed to the over imprisonment of minorities.

Some judges object to the guidelines because they rightly believe in the separation of powers. In a 1988 opinion, Judge Mukasey ridiculed the guideline in a sardonic tone, and proceeded to instruct the Justice Department on the virtues of the separation of power. He even went so far as to quote Alexander Hamilton from the Federalist Papers on the need for an independent judiciary, but also Shakespeare’s Macbeth as he reluctantly complied with what he considered bad law.

Of course, seeing this as indicative of Judge Mukasey’s independent streak or willingness to advocate for the separation of powers might be a bit of a stretch. Skeptics of Mukasey willingness to exercise restraint in the face of bold and expansive executive power need more than opinion written nearly 20 years ago or the fact that he insisted Jose Padilla have at least limited access to a lawyer. No matter who is President or what crime someone is accused of doing, having a lawyer defend the rights of the accused is a mainstay of the American justice system, not a privilege. So, while its good to know he was willing to defy the administration in that sense, he wasn’t exactly doing all that revolutionary.

Plus, Judge Mukasey actually did follow the guidelines most of the time.

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.”

So, as encouraging as this seems on first glance, more than likely this was voice of rookie federal judge resentful of having his power compromised, and understandably so. But at least it suggests he has some appreciation for the separation of powers, which is encouraging, particularly after Alberto Gonzales’s tenure at the Justice Department.

At any rate, as the AP article points out this may place Mukasey in an odd position, since he very well may have to advocate for a sentencing bill that the Justice Department has been lobbying Congress to pass, but Democrats are loathe to move. Lets see if he asserts real independence in convincing other conservatives of the counterproductive nature of sentencing guidelines.

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