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July 16, 2007

Will "Libby motions" ever work? Will we be able to tell?

Writing in the San Francisco Chronicle, Bob Egelko has this new article entitled "Double Standard: Bush's leniency for Libby doesn't jibe with administration's push to enforce mandatory minimum sentences."  The title spotlights the article's main theme, though the piece ends by noting two cases involving so-called "Libby motions" — i.e., arguments from defense attorneys likening a defendant's circumstances to Libby's and quoting Bush's commutation message when seeking a below-guidelines sentence. 

This article's discussion of two cases involving Libby motions highlights the challenges that observers and researchers may face when trying to gauge and assess the impact of Bush's commutation on federal sentencing realities.  I doubt that many (or even any) federal judges will state on the record that that they reducing a defendant's sentence simply because President Bush reduced Libby's sentence.  And yet, even if a judge asserts that the President's sentencing break for Libby is irrelevant to the case at hand, it is certainly possible that the judge has concluded (perhaps subconsciously) that some defendants other than just Libby merit a bit more compassion in the application of federal sentencing rules.

July 16, 2007 at 08:00 AM | Permalink

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Comments

I think that: 1) it is only a matter of time before they are mentioned by one district court judge; but 2) Libby will be used in such a way that the government really can't appeal that portion of the sentence.

Posted by: S.cotus | Jul 16, 2007 9:45:46 AM

Before we consider whether or not a "Libby Motion" has an impact, isn't it important to define what a "Libby Motion" is? Is it simply a motion where someone is arguably in a similar sentencing situation as Libby? Or, is it a motion where someone is in a similar sentencing situation AND they are similarly circumstanced otherwise? After all, the Libby commutation references much more than sentencing guidelines. If the second situation is what constitutes a "Libby Motion," then the whole concept is pretty much DOA, right?

Posted by: P.S. Ruckman, Jr. | Jul 16, 2007 11:29:27 AM

Prof Ruckman, you really should leave the lawyering to the lawyers. You are making a distinction without a difference. The point is simply to challenge the presumptive reasonableness of the Guidelines. Any relevant factor that would make a within Guidelines sentence "excessive" under the circumstances, including that the defendant (for whatever reason) has already suffered enough, would qualify as a "Libby motion."

Posted by: Anon | Jul 16, 2007 2:33:11 PM

> Any relevant factor that would make a within Guidelines sentence "excessive" under the circumstances, including that the defendant (for whatever reason) has already suffered enough, would qualify as a "Libby motion."

Oh, yes, do help the little non-lawyer out! So, the Department of Probation actually made the very first Libby Motion. Is that correct? And, do such motions have to actually use the word "excessive?"

Posted by: P.S. Ruckman, Jr. | Jul 17, 2007 11:11:06 AM

Prof Ruckman, I have no idea what you are talking about, which sort of underscores my previous point. The probation department did not file a motion of any kind. It prepared a presentence report that provided the court with its analysis of how the Guidelines applied to Libby.

Posted by: Anon | Jul 17, 2007 1:57:39 PM

And was that report the functional equivalent of a Libby Motion? Or, to plod, did it emphasize "any relevant factor" that would suggest "a within Guidelines sentence" was excessive "under the circumstances, including that the defendant (for whatever reason) has already suffered enough?"

Posted by: P.S. Ruckman, Jr. | Jul 17, 2007 2:44:18 PM

No

Posted by: Anon | Jul 17, 2007 3:34:46 PM

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