Mr. Mukasey's False Fear

The attorney general wrongly opposes adjustments of sentences for crack cocaine offenses.

LAST YEAR, the U.S. Sentencing Commission passed and Congress let stand new sentencing guidelines lowering the draconian penalties for crack cocaine. In December, without need of congressional approval, the commission made those changes retroactive. As a result, nearly 20,000 inmates behind bars for crack cocaine violations -- the majority of them African Americans -- will be eligible for early release over the next three decades. These are welcome and much-needed adjustments to a skewed system that imposes a five-year mandatory prison sentence on someone caught with five grams of crack; a defendant would have to be caught with 500 grams of powder cocaine to trigger the same sentence.

Yet in an appearance last week before the House Judiciary Committee, Attorney General Michael B. Mukasey asked lawmakers to undo the sentencing commission's retroactive application of the new guidelines. The commission's ruling takes effect March 3. And he did so with an appeal to fear. "Unless Congress acts . . . nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mr. Mukasey testified. The early release "at a time when violent crime is rising," he claimed, "will produce tragic but predictable results." Mr. Mukasey also argued that the task of recalculating sentences would impose a burden on judges and others in the criminal justice system.

Lawmakers should reject Mr. Mukasey's appeal. The attorney general failed to mention that not a single prisoner will be released before a probation report is produced, a federal prosecutor has a chance to weigh in and a federal judge signs off on the reduced sentence. The judge may take into account a host of factors in making his determination, including a prisoner's criminal history, his conduct while in prison, and whether he has completed pre-release programs meant to help with assimilation into a community. Moreover, a prosecutor who objects to early release will probably be able to appeal a judge's decision to a federal appeals court, adding yet another layer of protection for society.

Mr. Mukasey should be praised for being open to additional reforms to crack sentences; a Senate subcommittee is taking up the question today. Tackling future reforms is a worthy endeavor and a much better use of the attorney general's and lawmakers' efforts.