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July 26, 2007

Can Congress use the power of the purse to commute the border agents' sentences?

I hope to get some help from con law scholars to figure out whether the congressional efforts described in this article from the El Paso Times are constitutionally kosher:

A vote by the House of Representatives on Wednesday to free two former El Paso Border Patrol agents imprisoned for the shooting of a drug smuggler bolstered hope among relatives that they will be released soon. The House vote, in effect, would block the Bureau of Prisons from spending any money to incarcerate Ignacio Ramos and Alonso Compean, who are serving, respectively, 11- and 12-year federal prison sentences....  The Senate has yet to take up the measure....

The case of Ramos and Compean has become a national cause célebre for conservatives, who believed their conviction and imprisonment was unfair and who asked for a presidential pardon. [U.S. Representative Silvestre] Reyes, and U.S. Sens. John Cornyn and Kay Bailey Hutchison, both R-Texas, have said President Bush should commute the ex-agents' sentences. Last week Reyes, in a letter to Bush, said the sentences should be commuted because "while I do not condone the actions of Mr. Ramos and Mr. Compean, I do believe they received excessive sentences due to mandatory sentencing guidelines."...

The voice vote by the House came during a debate on a bill funding the Justice Department for the fiscal year beginning Oct. 1. "What this does is release these two individuals while the appeal goes on," said Rep. Ted Poe, R-Texas.

I certainly see a strong argument that, because the Constitution only gives the President the power of clemency, this kind of "funding commutation"  perhaps is a violation of the separation of powers.  And yet, since the power of the purse is profound, I could also see strength in the argument that Congress should have broad authority to control how monies are spent in the federal criminal justice system.

Any deep constitutional thoughts this Thursday, dear readers?

July 26, 2007 at 10:04 AM | Permalink

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Comments

Wouldn't such a selective defunding violate the separation of powers in yet another way: the sentence of a convicted defendant is a judgment of a United States District Court. The defendant is "committed to the custody of the Bureau of Prisons to be imprisoned for X months." Can Congress really forbid the Executive Branch to execute a court judgment according to its terms? That sounds like a question to which the answer must be No.

Posted by: Peter G | Jul 26, 2007 10:34:11 AM

I think congress should change the mandatory laws first to prove their opinions that this law is excessive. Then and only then should anybody considers any commutation for these border guards. Otherwise, it would be just normal BS coming from the Republican.

Posted by: Joe | Jul 26, 2007 11:41:29 AM

Peter G, with all due respect, I think your argument could logically be extended to say that the Judicial Branch has no authority to order the Executive Branch to hold a prisoner. After all, isn't that violating the notion of separation of powers? I think the idea of cutting off funding for the imprisonment of Ramos and Compean is silly, but I don't think it violates the separation of powers in the way you suggest.

Posted by: Steve | Jul 26, 2007 12:54:07 PM

I think it is incorrect to say that Congress does not have the clemency power. The topic came to the Supreme Court after the War Between the States. My memory is that the Court has explicitly ruled that Congress cannot limit the president's power, but can exercise the power on its own.

Posted by: P.S. Ruckman, Jr. | Jul 26, 2007 1:12:09 PM

"The War Between the States"? Jeez...

Posted by: Anon | Jul 26, 2007 2:10:25 PM

Could someone else in similar circumstances claim and equal protection issue?

Posted by: George | Jul 26, 2007 2:53:07 PM

I see huge equal protection issues in these occasional attempts to remedy politically incorrect (but legal) convictions and punishments. If they do it for these guys, they need to do it for ever other prisoner similarly situated. There are a lot of people sitting in prisons for using deadly force when they felt it was justified and a jury, convinced by a prosecutor, determined that fact contrary to the defendant. If we're going to second-guess and "congressionally commute" one such sentence, then all need to do the same for all of them. Otherwise my job as a defense attorney is just a load of b.s. and I'll go handle divorce cases all day.

Posted by: brucem | Jul 26, 2007 3:15:45 PM

Bruce M., you are exactly right.

Posted by: Large County DDA | Jul 26, 2007 3:28:22 PM

Odious as I personally find his position, the Georgia Attorney General is apparently one of few members of the executive branch that is concerned with equal protection. His arguement that Wilson cannot be freed because it would open the floodgates is valid... of course, it would also open a debate of the merits of overreaching sentancing policy as well...

Posted by: JJ | Jul 26, 2007 4:47:29 PM

The floodgates of freedom....

It really amazes me that "opening the floodgates" is the most effective argument one can make to an appellate court against changing a rule to allow something. It's nothing more than an illusory appeal to limited resources (i say illusory because no cause of action has ever brought the judicial system to a stand-still, and anyone can sue anyone for anything so what difference does it make?), and an argument meant to appeal to the judges' laziness. When a judge askes counsel "if we do as you say, won't it open the floodgates?" he is really saying "won't it give me more work to do?" If I were a judge, I would be offended if a lawyer suggested that I should rule in his favor because if I don't, I'll have more work to do. Such a lame but unfortunately effective argument (especially when adopted by the court as a reason for its decision).

Posted by: Bruce | Jul 26, 2007 7:26:57 PM

Can I just say, "Good luck" to the attorney who tries to prove similarly situated for an equal protection claim. If you could actually prove similarly situated, you'd see equal protection arguments in every sentencing appeal... Don't recall too many folks succeeding on claims that they should have gotten less time because a guy in their cell block did the same thing and got less time.

Posted by: JustClerk | Jul 27, 2007 1:06:11 PM

"Can I just say, "Good luck" to the attorney who tries to prove similarly situated for an equal protection claim. If you could actually prove similarly situated, you'd see equal protection arguments in every sentencing appeal... Don't recall too many folks succeeding on claims that they should have gotten less time because a guy in their cell block did the same thing and got less time."

I suppose disparity is an illusion that the court pretends to take serious.

Posted by: Joe | Jul 27, 2007 2:12:35 PM

Well congress is the one who constantly uses "unwarranted sentencing disparity" as the end-all justification for the US Sentencing Guidelines, abolition of parole, and the whole SRA. The justice department parrots that justification whenever a defendant complains about the application of the guidelines. Congress should be estopped from passing laws preventing unwarranted sentence disparity and then, in an unwarranted display of politics, passing laws effecting specific individuals, to create a sentence disparity. It's asinine.

Posted by: Bruce | Jul 27, 2007 3:45:07 PM

"Well congress is the one who constantly uses "unwarranted sentencing disparity" as the end-all justification for the US Sentencing Guidelines, abolition of parole, and the whole SRA. The justice department parrots that justification whenever a defendant complains about the application of the guidelines. Congress should be estopped from passing laws preventing unwarranted sentence disparity and then, in an unwarranted display of politics, passing laws effecting specific individuals, to create a sentence disparity. It's asinine."
This is why I have a hard time with these laws. In one instant, the law states (a generalization of my opinion) your sentence can only be enhanced by proof beyond a reasonable doubt but the courts has found loopholes to get around that through contradictory laws. If I understand you correctly, Congress enacted laws that are favorable to one groups and when the political wind blow in the opposite direction they enacted laws to the contrary. Yet, the constitution remain the same, left up to one's interpretation. No wonder, I could never be a Lawyer. This insanity would put me in the crazy house.

Posted by: Joe | Jul 27, 2007 4:48:01 PM

Is there a difference between Congress mandating that no portion of any future funding to the Bureau of Prisons be spent to incarcerate these fellows and Congress ordering BOP not to spend already allocated general funds to that purpose?

It seems like Congress can do the former, but not the latter.

Defense attorney

Posted by: Jack T | Jul 30, 2007 11:02:05 AM

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