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Who Gets Compassion from Eric Holder...and Who Doesn't


About a month ago, Attorney General Eric Holder issued this memo directing US Attorneys to abandon a litigating position they had used successfully in a number of courts.  The position tossed overboard was that sentencing judges should refuse to give retroactive effect to a more lenient crack cocaine sentencing statute passed in the last Congress.  The AG's change of position was undertaken ostensibly in the name of compassion.  "Fairness," you see, needed uniformly to be "restored" to federal crack penalties.  The Department's previous position against retroactive application had been, even if correct as a matter of law, so, you know, heartless.

The Department's bottomless pit of compassion for crack dealers seems to have run dry, however, for the family of a federal law enforcement officer cut down in the line of duty.  Border Agent Brian A. Terry was murdered last December with a gun illegally obtained by one Jamie Avila. Terry's family has moved under the federal Crime Victims Act to intervene in the case against Avila.  

Motions of this type are routinely supported by the US Attorney's Office.  But not this time.  It seems, or so US Attorney Dennis Burke says, that the family does not meet the specific statutory definition of a "victim."   This is so, the government says,

because the family was not "directly or proximately harmed" by the illegal purchase of the murder weapon, it does not meet the definition of "crime victim" in the Avila case. Burke claims the victim of the Avila's gun purchases, "is not any particular person, but society in general."

Well my goodness.  So forgiving toward crack dealers, but so tough with an Agent's widow (who doesn't want to push any drugs but just have a chance to speak).

Gads, a suspicious person might detect something odd going on here.  Something like, say, politics.


Yes, lan' sakes alive, politics.  Who woulda thunk such a thing from Eric Holder's DOJ?

On the other hand, a person might start to wonder upon hearing that the gun Avila used to kill Agent Terry was furnished to him in Operation Fast and Furious, a disastrous failure of a plan to investigate how Mexican drug cartels got their hands on so many automatic weapons.

Operation Fast and Furious has understandably provoked considerable interest by Congress.  It's a story unto itself, and I won't attempt to go through all of it here.  For the moment I'll say only that there is more than one indication that the Department would like to make Acting ATF Director Ken Melson  --  an honorable man  -- the fall guy for failures hatched higher up the chain.

And that, I think, is the key to understanding why the Department, while going all gooey for crack dealers, is taking such a remarkably hard line stance against the Agent's widow.

Fox News has the whole sleazy story.  Thanks to reader federalist for alerting me to this budding scandal.


Bill, I think you may be too quick with your anti-Holder politics cry here. Bush's DOJ took a very similar position in the Atrobus case involving the illegal sale of a murder weapon used in a mass shooting in Utah. Paul Cassell litigated the issue up to SCOTUS and lost at every stage along the way.

To the extent politics is in play, I think it is NRA-friendly politics: saying a murder victim is, for legal purposes, the "victim" of an illegal gun sale would potentially facilitate efforts by murder victims (and all victims of any form of gun violence) to seek TORT recovery from gun sellers and gun manufacturers who knowingly or even negligently allow guns to be purchased by those not allowed to possess them.

As for being forgiving to crack dealers where the FSA is concerned, this in not Holder's call, but the call of Congress and the majority of circuits to address the issue.

Here, Bill, I fear you are not living up to your desire to be "fair and balanced."

And, Bill, upon re-reading the title of this post I am intrigued by your apparent interest in having the AG moved by "compassion" (which seems a code word for "empathy") rather than by the law.


Welcome as a commenter. I don't speak for CJLF, but I feel sure it is as pleased as I am to have a scholar, innovative thinker and leading blogger chime in.

I am not familiar with the Atrobus case and I defer to your description of it. Be that as it may, the government always has the option of taking no position. I'm having a hard time thinking of any very important governmental interest that is served by affirmatively opposing intervention by the family of a murdered agent. His service in federal law enforcement would by itself seem to me to suggest cutting the family the very small break that would inhere in simply not taking a position. If the government were to remain silent, that would set no precedent (silence never does), and it is in any case a rare event when a federal officer's family seeks intervention of this type.

A federal prosecutor has a boatload of discretion. Hundreds of times during my career I saw it used to scale back or drop entirely the prosecution of people who could have been convicted. Since it can be and is used to give a break to people on the edge of the law (or over the edge), it certainly could have been used here to just let the aggrieved family's motion pass in silence. If the court, on its own, or on the defendant's motion, wanted to bar the family on the basis of the Crime Victims Act, that's one thing. It seems to me that DOJ went out of its way, and for no very pressing reason, to keep the family on the sidelines.

If, as both of us suspect, politics played a part here, it makes no difference whether it was politics designed to curry favor with the NRA or politics designed to avoid inflaming the potential scandal growing around Operation Fast and Furious. Politics of either variety, indeed of ANY variety, has no place in prosecutorial decisions of this nature.

I have to admit, however, that the Department's resistance to having Acting Director Melson appear before Congress to testify about Fast and Furious adds to my suspicion that the politics that has surfaced in the government's motion is, indeed, Fast and Furious politics, not NRA politics.

I disagree that Holder's memo reversing course on crack retroactivity was effectively out of his hands, and was ordained by Congress and the courts. DOJ had won this issue in several district courts and, I believe, two circuits (the Second and Seventh, provoking, in the former, two somewhat anguished concurring opinions). It had lost in three circuits. With that mixed record, there was no need to reverse course. To the contrary, what you have is the basis for a promising cert petition.

The reason DOJ went with the reversal of course instead of pressing on with cert was not that it was FORCED to. The reason is that it WANTED to. The fifth floor at Main Justice is staffed by a whole bunch of people who were members of, or are in sympathy with, the defense bar. The lowering of crack sentences has been an article of faith with the that segment of the bar, and even more so with the CBC, which the administration counts as among its most loyal and needed bloc supporters in Congress.

I also do not agree with the idea that Congress ordained DOJ's change of position. It certainly could have done so, by amending the FSA to include an explicit exemption from the Savings Statute. But that is exactly the action Congress never took and, as you know better than most, was THE stumbling block for the defense bar in arguing its position.

Finally, on the empathy/compassion question: It is one thing for the political branches to be influenced by compassion, and quite another for it to influence the judicial branch. The former properly may be motivated by will (hopefully the will of the electorate), while the latter is required to avoid wilfullness and be bound by law.

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