Federal judges usually only speak through the written opinions and orders of their courts, confined to a case currently before them. And it’s exceedingly rare for a federal appeals judge to take someone on a national politician by name. Yet Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit did just that, slamming Attorney General Eric Holder for doing an end run around federal law.
Congress created the U.S. Sentencing Commission in 1984, comprised of federal judges and top lawyers. The commission makes recommendations to Congress on what kind of sentences should be handed down when someone is convicted for various types of federal crimes. Congress then decides whether to accept, reject, or modify those suggestions, and then they become part of the law that federal prosecutors enforce in court.
One top federal judge is accusing the nation’s top prosecutor of violating that process, as Pryor rebuked Holder for his recent conduct. The commission was debating a proposed amendment regarding drug conviction sentences, whether to send it to Congress. If the commission took that step, Congress would have until November 1 to decide what–if anything–to do about it.
Yet as Pryor–who is also a former state attorney general–said in a public statement today:
But 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 [to modify pending sentences]. That unprecedented instruction disrespected our statutory role… and the role of Congress, as the legislative branch, to decide whether to revise, modify, or disapprove our proposed amendment… The law provides the Executive no authority to establish national sentencing policies based on speculation about how we and Congress might vote on a proposed amendment… I hope that we can avoid, in the future, the kind of improper instruction that he sent federal prosecutors…
In other words, Holder instructed every federal prosecutor nationwide to act as if the change had taken place, resulting in lighter sentences for drug crimes. Experts have harshly criticized Holder on drug prosecutions, where his lenient views are well known, and where he has already ordered his prosecutors not to prosecute certain drug offenses in the name of “conserving scarce resources.”
The Constitution requires that the president “take care that the laws be faithfully executed,” and his attorney general–in particular–is tasked with carefully enforcing those laws in court. That constitutional command seems to be irreconcilably opposed to Holder’s actions. While every prosecutor exercises “prosecutorial discretion” to decide which cases are most important, it never means that a prosecutor can change the law or pretend it doesn’t exist.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.