Last week we learned about a brief verbal skirmish at the U.S. Sentencing Commission, which voted to approve a 2-level reduction in the offense levels for drug crimes. Judge William Pryor, who is on the commission, reportedly said:
I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward. That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.
The Attorney General’s representative on the commission objected. The National Review has the quote; Doug Berman’s blog and Crime and Consequences have further analysis; and the Fifth Circuit blog has more links, including to what seems to be the official Justice statement that angered Pryor.
But after reviewing the various reports, I confess I am not quite certain exactly what the fight is about. I have formulated four possibilities for what Judge Pryor’s substantive objection could be:
1: The agenda-setting theory. The Sentencing Commission is supposed to periodically review the appropriateness of the Guidelines, and the Guidelines still have weight at sentencing because of the expertise the Commission brings to bear. But what Holder did — propose a change and start implementing it before getting approval — treats the Commission’s approval as an afterthought, and ultimately is a blow to the idea that the Commission should be in charge of deciding when change is appropriate.
2: The formalism theory. Until the Commission approves an amendment, it is not yet part of the Guidelines. By acquiescing in attempts to apply the new Guideline, the Attorney General is complicit in illegality.
Note that it is not clear to me whether this theory matches what was actually happening. Judges can vary or depart downward from the Guidelines if they want, and the government can (although it usually doesn’t) recommend this. Holder’s press release seems to go farther, suggesting that prosecutors will agree to “defendants [who] in court seek to have the newly proposed guidelines applied to them during sentencing,” not just as a departure. But it’s not clear to me if the press release was drafted with legal precision and I don’t know what has actually been happening in practice.
3: The “drugs are bad” theory. Judge Pryor does not really think drug sentences should be lowered, and if they should be lowered, he does not think it is a good thing to do so enthusiastically or earlier than necessary. So the administration’s actions are bad largely because they compound the badness of the new amendment.
4: The lawless Obama administration theory. Under this theory, Judge Pryor is really responding to the long string of decisions by the Obama administration to decline to follow or enforce the law. Think of the employer mandate, the individual mandate hardship exception, the deferred-action immigration program, the foreign aid to Egypt, and the toleration of Colorado’s recreational marijuana market. (For the constitutional problems with non-enforcement generally, see my former colleague Zach Price.)
Presidents end up with narratives, including critical ones. Just as some people viewed every new security measure by George W. Bush with suspicion because of his prior actions, some people view every new exercise of enforcement discretion by the Obama administration with suspicion. Perhaps Judge Pryor’s reaction to Attorney General Holder is colored by the broader narrative of the lawless Obama administration.
I am not certain that any of these theories are true. Theories 1 and 2 strike me as the most likely, and also the most legitimate. Theory 3 strikes me as unlikely, since Judge Pryor voted in favor of the amendment. Theory 4 is possible, but I would hope that a sitting federal judge would be more self-aware. In any event, I welcome either descriptive or normative suggestions.