July 7, 2007
Comparing Bush's own records on clemency
Now available here is Adam Liptak's Sunday New York Times piece entitled "For Libby, Bush Seemed to Alter His Texas Policy." Here is how it starts:
Until he commuted the 30-month prison sentence of I. Lewis Libby Jr. on Monday, President Bush had said almost nothing about his philosophy in granting clemency while at the White House. As governor of Texas, though, Mr. Bush discussed and applied a consistent and narrow standard when deciding whether to issue pardons and commutations. And that standard appears to be at odds with his decision in the Libby case.
Mr. Bush explained his clemency philosophy in Texas in his 1999 memoir, "A Charge to Keep." "In every case," he wrote, "I would ask: Is there any doubt about this individual’s guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?"
In Mr. Libby's case, Mr. Bush expressed no doubts about his guilt. He said he respected the jury's verdict, and he did not pardon Mr. Libby, leaving him a convicted felon. And Mr. Bush acted before the courts had completed their review of his appeal.
Some related posts:
The Libertarian response to the Libby commutation
I just saw this interesting press release from the Libertarian Party of Florida providing a notable take on how the President should follow-up his commutation of Lewis Libby. Here are snippets:
National Libertarian Party chairman William Redpath is challenging President Bush to address the issue of prison time for nonviolent consensual crime offenders after saving Lewis "Scooter" Libby from serving 30 months in prison. "After freeing Scooter Libby because of what he calls too strong of a sentence, we challenge President Bush to do the same for same for the thousands of Americans currently in prison for other nonviolent victimless offenses," Redpath said upon the announcement of Libby's sentence commutation. "These Americans are forced to serve a sentence for offenses far less serious than those committed by Libby."...
The Libertarian Party believes jailing nonviolent offenders is a waste of government resources, which could be used in turn for what the party calls "real crime."... The average sentence for a nonviolent offender is over 50 months in prison.
According to a report released by the Center on Juvenile and Criminal Justice, the American prison system held over one million nonviolent offenders by the end of 1998 — the first time ever in American history. The same report found that prison costs of incarcerating the 1.2 million nonviolent offenders totaled $24 billion dollars for that year. "If President Bush feels that Libby’s punishment is too severe for the crime, then why does our judicial system still require prison for some nonviolent crimes where no victim exists?" Redpath continued. "It is a grotesque waste of scant judicial resources."
The platform for the Libertarian Party calls for the immediate reform of the judicial system’s mandatory sentencing policy, to both reduce a skyrocketing prison population and ensure violent offenders are not prematurely released from jail.... "In the supposed 'Land of the Free,' we have the highest prison population in the world," Redpath said. "The Libertarian Party believes this is a serious problem that demands serious attention."
Some related posts:
Lots of interesting white-collar sentencing news
In addition to doing very strong work on the Libby front, the folks at White Collar Crime Prof Blog have a lot of great coverage of other recet white-collar sentencing developments. Everyone should be sure to check out:
- The Continuing Saga of Former Alabama Governor Siegelman
- Lawyer Who Leaked BALCO Grand Jury Transcripts Agrees to Higher Sentence
And, though not a sentencing issue, sports fan will also want to check out this new post: Feds Search NFL Star's Property Again for Dog Fighting Evidence.
Arguments in sentencing former Qwest CEO
As detailed in this AP article, prosecutors "recommended Friday that former Qwest chief executive Joe Nacchio serve a maximum of seven years and three months in prison for completing $52 million in illegal stock sales when his telecommunications company was at financial risk." Here are more details:
In a brief filed late Friday, government attorneys also recommended Nacchio serve three years probation and be fined a maximum of $19 million. "Any less severe sentence would fail to provide just punishment, to promote respect for the law, and to protect the public," prosecutor James Hearty wrote on behalf of the legal team.
In a separate brief, defense attorney Herbert Stern asked U.S. District Judge Edward Nottingham to impose an unspecified lesser sentence which he said was warranted because of the effect a lengthy prison term would have on the health of two of Nacchio's family members. Stern said the situation was explained in detail in a sealed report from the U.S. Department of Probation that was submitted to the judge.
There's no news about whether Nacchio's legal team has filed what Ellen Podgor is calling "The Libby Motion".
July 6, 2007
More thoughtful commentary on the President as sentencer
The Brian Lehrer Show on WNYC Radio had a nice extended segment today (available here) entitled "Commuting Costs" with Professors Peter Henning and Rachel Barkow talking thoughtfully about the "possible ramifications of the Libby commutation on federal sentencing." Peter also has more on this topic at this new post at White Collar Crime Prof Blog.
Some related posts:
- Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
- Collateral litigation consequences of a commutation
- What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"
- Still more sentencing arguments for defendants from the Bush Administration
ABA Journal article on Panetti
The ABA Journal has this new article on the Supreme Court's Panetti decision entitled "Mentally Ill Death Row Inmates Get Another Chance: Court turns back Texas capital case once again." Here is a snippet focused on the case's possible broader impact:
The U.S. Supreme Court did more Thursday than block the execution of one mentally ill death row inmate in Texas. Panetti v. Quarterman, No. 06-6407. It also gave other mentally ill death row inmates potential new grounds to challenge their sentences, legal experts say....
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento, Calif.-based victims' rights organization, calls the decision the "Panetti punt" because the court didn't answer the substantive Eighth Amendment question it was supposed to answer. If the decision has a bright side, Scheidegger says, it is that the majority made clear it was talking about psychotic disorders, not the broad sweep of mental illnesses contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
Lawyers for the Texas attorney general's office refused to comment on the decision. But they did issue a prepared statement from Texas Solicitor General Ted Cruz, who argued the case before the court. Cruz said the decision will "invite abuse from capital murderers, subject the courts to numerous false claims of incompetency and even further delay justice for the victims' families." But he also said prosecutors would "continue working" to ensure that Panetti is executed for the murders of his in-laws.
Another Libby tour around the blogosphere
It's not easy keeping up with all the Bush commutation buzz, but this abridged (and "fair and balanced"?) selection of recently Libby talk around the blogosphere makes for interesting reading:
- From Daily Kos, Scooter Libby vs the Republican Sentencing Guidelines
- From the Law Blog, A Law Professor's Inside Take on Bush's Commutation Policy
- From Patterico's Pontifications, Scooter Libby Couldn’t Serve Even One Day?
- From Red State, The Libby Fallout
- From TalkLeft, Libby, the Marc Rich Pardon and Congressional Hearings
- From The Volokh Conspiracy, The Supreme Court and the Libby Case -- A Dialogue
Another good Libby read this morning is also P. S. Ruckman's piece at the National Review entitled "Pardon Me: News for the commutation critics."
July 5, 2007
The fine points of fines as Scooter pays up
As detailed in this NBC story (and verified by the picture here released by the DC District Court), Scooter Libby today paid his $250,000 fine (plus a $400 special assessment). The NBC story reports that a "source close to Libby ... emphasized that the fine imposed by U.S. District Judge Reggie Walton was paid entirely from Libby's personal funds."
Meanwhile, in this nice Slate piece, Michelle Tsai notes that even if Libby gets pardoned, it may be hard for him can he get his money back. But, given Libby's apparent ability to cut a check for a cool quarter million from his "personal funds" only a month after his sentencing, I cannot help but conclude that the fine has not been too harmful to Libby's bottom-line.
Relatedly, the Slate piece has this interesting concluding item: "While Libby's personal finances are a bit of a mystery today, that may soon change: According to the terms of his supervised release, he's required to report all income of more than $500."
Another circuit decision failing to grapple with the ex post impact of Booker
Last year, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory after Booker, ex post facto doctrines no longer preclude applying the most recent guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense (basics here, commentary here). However, as detailed here and here, the implications of Booker for pre-Booker ex post facto doctrines has been woefully under-examined as other district and circuit courts have failed to consider if Booker might impact pre-Booker ex post doctrines.
Today the Second Circuit in US v. Kilkenny, No. 05-6847 (2d Cir. July 7, 2007) (available here), provides another example of unthinking application of pre-Booker ex post doctrines in a post-Booker world. Though the Kilkenny opinion provides an extended discussion of the purposes and history of the ex post facto clause, it does not even consider whether and how Booker's change in the guidelines' legal force could change how ex post doctrines are now to be applied in federal sentencing proceedings.
Anyone know "what Arkansan is for chutzpah"?
According to this CNN article, Tony Snow had a riotous response to Bill Clinton's criticism of Bush's commutation of Lewis Libby's sentence:
White House spokesman Tony Snow fired back at former President Bill Clinton after Clinton charged that the Bush administration believes the law is a "minor obstacle" in the "Scooter" Libby case. "I don't know what Arkansan is for chutzpah, but this is a gigantic case of it," Snow told reporters in an off-camera briefing Wednesday....
Snow also apparently addressed some other enduring post-commutation issues:
Snow also said the White House feels it is on safe legal ground in contending that Libby will serve two years of probation, despite questions now being raised by Judge Reggie Walton, who issued an order Tuesday suggesting Libby cannot serve any probation since he never served any prison time before the commutation....
After first suggesting he wasn't sure, Snow said White House counsel Fred Fielding had "absolutely" checked on this question before the president signed off on the commutation. "The White House did not make a misstep," he said. Despite the certainty expressed by Snow, he did add that there's some "gray area in the law."
Asked about the plan of House Judiciary Chairman John Conyers, D-Michigan, to probe the Libby commutation, Snow snapped that the congressman should "knock himself out," but also probe the slew of pardons granted at the end of the Clinton administration.
Still more sentencing arguments for defendants from the Bush Administration
As stressed in posts here and here and here, President Bush's statement of reasons for commuting Lewis Libby's "excessive" prison sentence provides great material for federal defendants seeking reduced sentences from federal judges. (Intriguingly, this New York Sun article today explains that an "alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush's commutation.")
It is hard to be certain exactly how judges and others will react to what Ellen Podgor is calling "The Libby Motion". (Peter Henning adds here reasons why the President's work, legally speaking, "has created a bit of a mess on a number of different fronts.") What is certain, however, is that every official effort to defend the commutation creates more potential arguments for defendants and defense lawyers. Consider, for example, these passages from White House spokesman Tony Snow's commentary in USA Today:
President Bush commuted part of Lewis Libby's sentence because he considered a 30-month stretch in prison too severe. Libby was convicted of obstruction of justice and perjury; was fined $250,000; must serve two years probation; and will likely lose his license to practice law. That qualifies as a stern penalty for a first-time offender with a long history of public service....
The president believes pardons and commutations should reflect a genuine determination to strengthen the rule of law and increase public faith in government.... In reviewing the case, the president chose to rectify an excessive punishment, and at the same time, the president made clear that he would not second-guess the jury that found Libby guilty. He believes it is important to respect the jury's work. The concept of judgment by a jury of peers forms the backbone of our judicial system. So the president left intact the felony convictions and two of the major punishments — the fine and probation....
The president was not motivated by politics in making this decision. If he had made the decision based on opinion polls, he wouldn't have lifted a finger. Instead, he did what he does normally, and what makes those of us who work for him proud. He proceeded on the basis of principle, and arrived at a sound and just decision — knowing he would take hits in the court of public opinion, but also knowing he was doing the right thing.
So, anyone working on sentencing issues should understand that President Bush views a fine and probation to be "major punishments" that can qualify "as a stern penalty" in some cases. In addition, "principle" apparently means that a "just decision" and "the right thing" may sometimes require freeing a convicted felon from any prison term even if this will lead to "hits in the court of public opinion."
Also, for anyone opposing acquitted conduct sentence enhancements, be sure to note that President Bush "believes it is important to respect the jury's work [because] judgment by a jury of peers forms the backbone of our judicial system." Indeed, in light of President Bush's emphasis on the jury's work in the Libby case, I hope he will soon instruct his Attorney General and his Justice Department to start supporting defendants' efforts to secure fully Blakely rights in the operation of the federal sentencing system.
Presidential pot to kettle: "your clemency decision is so black"
I have never been much of a Bill Clinton fan in part because his presidential criminal justice record was so disappointing. As noted here, President Clinton supported and signed legislation that increased the severity of federal and state sentencing terms, broadened the applicability of the federal death penalty, and sharply restricted habeas corpus rights for prisoners. And, Bill Clinton's highly suspect pardons on his final day in office tarnished the reputation of executive clemency power and provided another ugly mark on Clinton's overall criminal justice record.
Consequently, I am a bit disgusted by this news report that Bill Clinton has now "blasted his successor's decision to spare former White House aide Lewis 'Scooter' Libby from prison." Putting aside the fact that Clinton himself avoided any formal criminal charge for his own alleged perjury and obstruction of justice, Clinton's efforts to attack President Bush for his commutation strike me as a classic example of the pot calling the kettle black. Of course, strong partisans on both sides can (and likely will) say that the other team has an uglier clemency record. But, quoting another Bill in this setting, I say to Clinton and Bush "a plague on both your [white] houses."
UPDATE: This strong USA Today editorial hits all the right points when noting that politicians on "both sides are long on sound bites and short on ethical consistency." Here is the closing thoughts from the editorial:
Is Libby a threat to the public who needs to be confined? Obviously not. Is his attempt to con a grand jury in order to protect an administration unique? Sadly, that also is not the case, as the Clinton and Nixon administrations so amply proved.
The important question in the Libby case was whether Bush could rise above that sickening precedent. He failed, and the message that's left is unmistakable: If you stand in the way of justice, you can get off easy if you have a friend in the White House.
As noted in this prior post, the Federal Sentencing Reporter in 2001 produced a special double issue on pardons (on-line access here) which examined Clinton's ugly end-of-term pardons and explored the history and practicalities of executive clemency more generally. FSR's publisher has made several articles from that issue available for free on the linked site.
Should Bush's commutation reasons prompt the USSC to amend the federal sentencing guidelines?
The Supreme Court's decision in Rita — which, of course, declared reasonable Victor Rita's 33-month prison sentence for perjury and obstruction — stressed the importance and value of reasons given for federal sentencing decisions to aid the evolution of sound sentencing guidelines. Here is how Justice Breyer's opinion for the Court expressed this idea:
By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve.... [H]is reasoned sentencing judgment ... can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge's explanation should help the Guidelines constructively evolve over time.
These evolutionary insights, it seems, also ought to apply to the reasons articulated by a President for his sentencing decisions. Specifically, the US Sentencing Commission should seriously consider guideline amendments responding to President Bush's stated concerns about the "excessive" nature of Scooter Libby's (within-guideline) sentence.
In his official statement supporting his commutation order, President Bush stressed the damage to reputation, the suffering of family, and related "long-lasting" and "harsh" consequences stemming from Libby's felony conviction. President Bush also noted that Libby was a "first-time offender with years of exceptional public service" whose sentence was "based in part on allegations never presented to the jury." In light of these statement, I urge the USSC to start working on amednments lowering applicable guidelines sentences for (1) true first offenders with a history of prior good works, and for (2) defendants who suffer significant collateral consequences from a felony conviction. I also think that the USSC ought to urge sentencing judges to give less weight to contested allegations not subject to jury determination.
Arguably, if the existing sentencing guidelines were not so dismissive of positive offender characteristics or were not so open to the consideration of disputed relevant conduct, perhaps the President would not have felt a need to intervene on Libby's behalf. Moreover, as many have already suggested, Scooter's break based on these factors is especially disconcerting if no other defendants get the benefits of the President's sentencing doubts.
July 4, 2007
A look at clemency decisions in a different Washington
Providing a much different Washington perspective on executive clemency decision-making is this new lengthy article from Seattle Weekly entitled "Gov. Gregoire: One Tough Clemency Judge; For inmates who've truly changed their lives, how long a sentence is enough?"
A lot of sentencing news fit to blog
Sentencing news does not take a holiday, and fortunately neither does Howard Bashman. With thanks to How Appealing for the links, here is some coverage of a diverse array of on-going sentencing stories:
- On California's struggles to revise its lethal injection protocol, there is this article in the Los Angeles Times.
- On the seemingly endless struggle to get justice for Genarlow Wilson, the Atlanta Journal-Constitution has this new article.
- On the latest reactions to Bush's Scooter commutation, check out all the coverage here.
Holiday Libby reading thanks to the Huffington Post
The fine folks at The Huffington Post have driven up my hit rates by linking to this long-ago post comparing the now-free-from-prison lucky Libby Lewis to the imprisoned unlucky Victor Rita whose 33-month prison sentence was affirmed last month by the Supreme Court as reasonable. (One interesting side-note from the Supreme Court's Rita opinions: though President Bush decided Scooter Libby's prison term was "excessive," Justice Scalia described Victor Rita's longer prison term for the same crimes as a "relatively low sentence.")
Returning the favor, let me link to Arianna Huffington's strong piece rightly emphasizing that "Libby commutation -- like the war in Iraq, like the war on drugs, like global warming -- is not an issue that splits along right/left lines." There is also a lot of other good holiday reading about Libby and other topics at THP.
House hearing planned to examine Bush commutation
Today's Washington Post has this effective overview of all the latest Scooter news, including these details about a House hearing now in the works: "House Judiciary Committee Chairman John Conyers Jr. (Mich.) announced a hearing for next week to explore what he called "'the presidential authority to grant clemency and how such power may be abused.'"
TalkLeft, which has lots and lots of Libby commentary, links to this source reporting that the hearing will be held next Wednesday, July 11, at 10:15am and will be entitled "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials." Below I have highlighted some prior Libby discussion for any staffers looking for ideas while prepping for the hearing:
- Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
- Early reactions to President Bush's commutation of Libby's prison sentence
- What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"
- If any prison time for Libby is excessive and inappropriate, what about...
- More reactions to Bush's commutation of Libby
- Senator Biden picking up Scooter Libby and Victor Rita parallels
- Reflections on "Bush the merciful"
- Legal complications following Bush's commutation
- Collateral litigation consequences of a commutation
UPDATE: Edward Lazarus has this new essay at FindLaw talking through most of the strongest talking points against the President's commutation work.
A parental example of unequal justice (and the virtue of alternative)
The Washington Post has this front-page article today about sentencing inequalities and the limits of criminal law, but it is not about the special treatment Scooter Libby received. Instead, as excerpted below, it is about different state responses and punishments for parents hosting teen parties and serving alcohol:
[A] stark contrast in punishments is just one inconsistency in a patchwork of conflicting legal practices and public attitudes about underage drinking parties. Even at a time of strong concern about youth drinking and drunken driving, police and prosecutors say parents in the Washington region are rarely held responsible — criminally or civilly — for allowing teenagers to gather at their homes and consume alcohol. That's in large part because it's difficult to prove that the adults provided alcohol or condoned its use.
The issue is becoming more urgent, police say, as more parents, fearing their teenagers will drink anyway, allow alcohol at home to keep the youths off the roads and out of trouble....
Legal experts on underage drinking say civil penalties are more effective than criminal penalties. Civil ordinances, which are handled administratively, allow police to respond to complaints, break up the ever-larger drinking parties and hit parents quickly in their pocketbooks. "We don't believe that locking up mom and dad is the answer," said Michelle Blackstone of the Underage Drinking Enforcement Training Center, based in Calverton. "Research suggests that going after the purse strings is much more effective."
July 3, 2007
Collateral litigation consequences of a commutation
Commentators and reporters are now starting to explore the reality that the reasons given by President Bush to justify his commutation have long been made — and will now surely be made with extra force — to urge judges to give defendants below-guideline sentences. Here is how my colleague Alan Michaels put this point in an e-mail to me:
I do think [the President's statement] will be thrown in the face of every line assistant arguing for a Guidelines sentence in every district court in the country, and I would expect it to carry weight with some judges. I suspect the President's action is very demoralizing to A.U.S.A.'s around the country for this reason. These are folks who've backed the President's tough sentencing policy in the face of compelling and heart-rending arguments. Now the President makes the same argument they've been standing up to!
In this Slate commentary, Harlan Protass articulates this same point in these terms:
What's stunning about President Bush's commutation of Scooter Libby's sentence, if you're a criminal defense lawyer, ... is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else....
In the weeks and months to come, defense attorneys across the country won't be able to resist tapping away at their keyboards, arguing that their clients' individual circumstances call for sentencing breaks, just like Libby's did. It probably won't work. But the administration's inconsistency is so glaring — and so perfectly illustrates the flaw of harsh and mandatory sentencing regimes — that to point it out to judges will be irresistible.
Developing these same ideas with quotes from a number of informed lawyers are new newspaper articles by Adam Liptak in the New York Times and by Leah Nylan from Medill News. Here is a choice snippet from the NYT article:
Perhaps inadvertently, Mr. Bush’s decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing generally. “By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that,” said Ellen S. Podgor, who teaches criminal law at Stetson University in DeLand, Fla. “This is opening up a can of worms about federal sentencing.”
By yesterday morning, in fact, Mr. Bush’s arguments for keeping Mr. Libby out of prison had become an unexpected gift to defense lawyers around the country, who scrambled to make use of them in their own cases.... Indeed, Mr. Bush’s decision may have given birth to a new sort of legal document. “I anticipate that we’re going to get a new motion called ‘the Libby motion,’ ” Professor Podgor said. “It will basically say, ‘My client should have got what Libby got, and here’s why.’ ”
As a purely legal matter, of course, Mr. Bush’s statement has no particular force outside of Mr. Libby’s case. But that does not mean judges will necessarily ignore it.
UPDATE: This Los Angeles Times article includes some reactions from prosecutors that echo Alan Michaels insights:
Several federal prosecutors interviewed by The Times also said they were concerned that Bush's decision would send the wrong message to judges, giving them reason to lighten sentences and undermining the goal of a more uniform justice system.
"Consistency and fidelity to the law are extraordinarily important. We have expended a lot of credibility to get judges to buy off on this," said one senior federal prosecutor who requested anonymity because he was not authorized to speak publicly about the issue. "I don't know how I am going to advise my people," the prosecutor said. "I cannot tell you how depressed and disgusted people are around here with this decision. It really undercuts law enforcement."
Legal complications following Bush's commutation
I have been wondering about President Bush's statement that Libby would still serve "two years of probation" given that he was actually technically sentenced to two years of "supervised release." This is important in part because "supervised release" is only a legal possibility under federal law after a term of imprisonment.
Fortunately, Judge Walton is all over these intricate legal issues. Today he issued a two-page order explaining his concerns about how one can have a "term of supervised release after imprisonment" per 18 USC 3583 now that the President has erased the imposed term of imprisonment. The order, which can be downloaded below, calls for briefing on this issue from the parties by July 9.
UPDATE: Lyle Denniston discusses this issue here at SCOTUSblog.