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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:

July 7, 2007 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

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:

July 7, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

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:

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.

July 7, 2007 | Permalink | Comments (0) | TrackBack

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 7, 2007 in Booker in district courts | Permalink | Comments (0) | TrackBack

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:

July 6, 2007 in Libby sentencing | Permalink | Comments (0) | TrackBack

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.

July 6, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

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:

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 6, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

July 5, 2007

The fine points of fines as Scooter pays up

070705_libby_fine_check_h2 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."

July 5, 2007 in Criminal Sentences Alternatives | Permalink | Comments (7) | TrackBack

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.

July 5, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

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.

July 5, 2007 in Clemency and Pardons | Permalink | Comments (13) | TrackBack

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.

July 5, 2007 in Libby sentencing | Permalink | Comments (9) | TrackBack

Presidential pot to kettle: "your clemency decision is so black"

Goenglish_com_thepotcallingthekettlI 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.

July 5, 2007 in Clemency and Pardons | Permalink | Comments (12) | TrackBack

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 5, 2007 in Libby sentencing | Permalink | Comments (5) | TrackBack

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?"

July 4, 2007 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

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:

July 4, 2007 | Permalink | Comments (0) | TrackBack

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.

July 4, 2007 in Libby sentencing | Permalink | Comments (0) | TrackBack

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:

UPDATE:  Edward Lazarus has this new essay at FindLaw talking through most of the strongest talking points against the President's commutation work.

July 4, 2007 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

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."

Related post:

July 4, 2007 in Offense Characteristics | Permalink | Comments (2) | TrackBack

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."

July 3, 2007 in Libby sentencing | Permalink | Comments (4) | TrackBack

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.

Download libby_3583.pdf

UPDATELyle Denniston discusses this issue here at SCOTUSblog.

July 3, 2007 in Libby sentencing | Permalink | Comments (20) | TrackBack

Some media coverage of the Bush commutation

Howard Bashman here has collected all the major newspaper coverage of President Bush's decision to commute the imprisonment portion of Lewis Libby's sentence, and he has collected here a lot of links to NPR stories.

In addition, this afternoon I was part of a team of pundits discussing the commutation on the show "To The Point," and a webcast of the program is available here.

UPDATE: Howard also now has a collection of commutation commentaries linked here,

July 3, 2007 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

Reflections on "Bush the merciful"

Capital punishment specialists eager to join in all the Scooter commutation excitement should besure to check out this (inflamatory? unfair?) comparison of clemency considerations in the cases of Karla Faye Tucker and Scooter Libby from Jonathon Miller in a post entitled "Bush the merciful":

George Bush has not commuted a single one of the 155 death sentences for which he has been responsible as governor of Texas and president of the United States.  Not that he is without mercy.  Scooter Libby, a political crony of the vice president convicted of obstruction of justice and sentenced to prison, will not spend a day in jail, thanks to Bush’s intervention.  Bush smirked as he sent Karla Tucker, the cutest of his victims, to the lethal injection chamber, counting as for nothing the horrendous circumstances of her life and what seemed subsequently to be genuine remorse for her actions.  Crowds outside the prison cheered as Karla Tucker was killed.  Karla Tucker was of course merely a former drug addict and prostitute who used to hang out with the Allman Brothers band, whereas Libby was a graduate of Andover Academy and Yale.

Hat-tip: ODPI.

July 3, 2007 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Senator Biden picking up Scooter Libby and Victor Rita parallels

I am pleased to see from this post on Senator Joe Biden's blog that the senior senator from Delaware — where I am right now supposedly on vacation — is talking about the different treatment that the Bush Administration has shown toward Scooter Libby and Victor Rita.  Here is the text of Senator Biden's recent official statement:

“Tony Snow said that President Bush decided to commute Scooter Libby’s two and a half year-prison sentence for perjury and obstruction of justice, because it was ‘excessive.’

“Yet last year the Bush Administration filed a “friend-of-the-court brief” with the Supreme Court, in an attempt to uphold a lower court’s ruling that a 33-month prison sentence for Victor Rita, who was convicted of the same exact charges, perjury and obstruction of justice, was ‘reasonable.’

“The questions we should all be asking ourselves today are: Why is the President flip-flopping on these criminal justice decisions? Why is Scooter Libby getting special treatment?”

As is not uncommon, the politician has the law a little wrong.  The Bush Administration was filing as a party (the respondants) in the Rita case before the Supreme Court.  Also, I think SG's Rita brief was filed in this year.  But, legal technicalities aside, Senator Biden is right to wonder why President Bush viewed Scooter Libby's (within-guidelines) prison sentence to be excessive while his Justice Department has argued so forcefully that Victor Rita's (within-guidelines and longer) sentence is reasonable.

As detailed in many posts below, I have been noting the Libby-Rita parallels for quite some time:

July 3, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

Ninth Circuit panel debates sentencing enhancement

Anyone seeking an interesting Scooter sentencing break can check out today's split Ninth Circuit panel decision in US v. Gonzales, No. 05-10543 (9th Cir. July 3, 2007) (available here).  The majority in Gonzales upholds a "district court's decision to impose a nine-level sentencing enhancement for reckless endangerment of the aircraft" over a lengthy dissent by Judge Tashima.  (Given the colorful facts described by the majority, I doubt President Bush will be reducing Salvador Gonzalez's sentence anytime soon.)

July 3, 2007 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Strong Scooter commentary around the blogosphere

300pxscooter1 I have not been able to read closely all the comments to prior Libby posts, but I've seen lots of (thoughtful?) debate worth checking out here.  But a bit of quick surfing has also led me to a number of strong discussions of Scooter's fate around the blogosphere.  Besides this great wiki on Scooter the muppet, readers will want to be sure to check out these posts from fellow law-bloggers:

UPDATE: Also be sure to check out Dan Filler at Concurring Opinions with Scooter Libby's Disabilities. And also Eric Muller at Is that Legal? with Scooter's Law.

July 3, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

More reactions to Bush's commutation of Libby

Cut-and-pasted straight from my e-mail is another set of reactions from other informed readers to President Bush's decision to fully commute the imprisonment portion of Lewis Libby's sentence.

First, from an FSR editor:

RELEVANT CONDUCT: "Is that Relevant?" Although he cast it in terms of what "critics" are saying, the President seems troubled that Mr. Libby was sentenced "in part on allegations never presented to the jury."  Indeed, this is a big and troubling issue.  Just ask former Alabama Governor Don Siegelman (D) whose guideline range was increased because of acquitted conduct (discussed here).

Sentencing scholars have criticized the federal guidelines' (over)reliance on so-called relevant conduct for years.  Maybe DOJ and the Commission will pay attention now that the President himself has come out against relevant conduct. In fact, look for defense attorneys to seek -- and maybe some Judges to grant  -- downward departures/variances based on the use of relevant conduct.  Sounds like a "reasonable" sentencing conclusion to me, but I guess we will have to wait for the Supreme Court's coming discussion of reasonableness in Gall to know for sure.

PARDONS ISSUE:  "We Knew Commutation Before Commutation Was Cool." The Federal Sentencing Reporter is always spotting and exploring crucial sentencing developments.  With the Libby commutation all the rage, Iconsider the excellent FSR double issue on pardons from 2001 (on-line access here). In that issue, legendary sentencing law professor and FSR founding editor Dan Freed teamed up with Professor Steve Chanenson of Villanova Law School (also an FSR editor), and Margy Love, the former DOJ Pardon Attorney to create an authoritative review of pardons and clemency.  Several of those articles are available for free on the linked site and the whole issue is still available for purchase.

In the wake of the Libby case, two articles jump out as must reads.  First, Professor John Harrison of Virginia Law explores the history of pardon and the President's "power of doing good without a rule."  Second, Professor Daniel Kobil of Capital Law discusses whether the President should be required (or encouraged) to explain his grants of clemency.  This topic is particularly relevant because President G.W. Bush, like President G.H.W. Bush before him, gave some insight into his thinking about clemency.  These articles are only the tip of the iceberg from this rich collection of original articles and hard-to-find primary sources on clemency. Enjoy!

Second, from another very knowledgeable reader:

I hope that the Libby "resentencing" (as you quite correctly describe it) will lead some (if not the Presidnet) to point out that there are many many others who are serving prison sentences that are unwarranted by any consideration of public safety or deterrence -- some of them are freaksih in their length.   PLEASE continue to point out the injustice of the President's limiting consideration to this one person, and ignoring so many others with even greater claims to his mercy.  Pleae also point people to this op-ed from Margaret Love of a couple of weeks ago.  

July 3, 2007 in Libby sentencing | Permalink | Comments (5) | TrackBack

If any prison time for Libby is excessive and inappropriate, what about...

some other notable federal sentences like...

or some notable state sentences like...

I must note that I have been arguing (mostly informally but sometimes formally) for shorter sentences in all of these cases, so I am a bit biased when I contend that these sentences all seem to me a lot more excessive than having Libby serve at least some time behind bars. 

Critically, my chief goal in this post is not to assert that all the persons should be able to escape all punishment.  Indeed, as President Bush stressed in his commutation statement, Libby still has not (yet) escaped all punishment.  Rather, I wish primarily to urge anyone and everyone defending President Bush's sentencing determination in the Libby case to explain why all these less prominent defendants — most of whom are now locked in a cell while Libby now makes plans for the paid lecture circuit — don't also merit some executive sympathy.

July 3, 2007 in Libby sentencing | Permalink | Comments (22) | TrackBack

July 2, 2007

What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"

Distilled to its essence, President Bush's decision to commute the imprisonment portion of Lewis Libby's sentence is a sentencing decision.  The President has not formally excused Libby or changed his status as a convicted felon, and the President's statement indicates "respect" for a federal jury's determination that Libby committed numerous federal crimes.  What the President apparently does not respect is the within-guideline prison term that Judge Reggie Walton concluded was "sufficient, but not greater than necessary" under federal law for Libby's numerous federal crimes.

As I noted here, many federal defendants and their attorneys have argued in many fora that guideline imprisonment levels should not be shown undue respect, but Bush's Justice Department has argued in many fora that the guidelines merit faithful allegience.  It will be interesting to see if, after the President has made clear that he views the guidelines are "excessive" for one of his pals, others with sentencing power begin to give less respect to the guidelines when the fates of less connected defendants are in the balance.

A collection of today's Libby commutation posts:

July 2, 2007 in Libby sentencing | Permalink | Comments (15) | TrackBack

Fitzgerald's reaction to the Bush communtation of Libby's prison sentence

Thanks to TalkLeft, which has lots and lots of Libby talk, you can access here Patrick Fitzgerald's statement on President Bush's commutation of Scooter Libby's sentence.  Here is the heart of Fitz's response to Bush's sentencing judgment:

We comment only on the statement in which the President termed the sentence imposed by the judge as "excessive."  The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.  It is fundamental to the rule of law that all citizens stand before the bar of justice as equals.  That principle guided the judge during both the trial and the sentencing.

Relatedly, Bill Richardson is quoted here asking this question in response to Bush's sentencing decision: "Will the President also commute the sentences of others who obstructed justice and lied to grand juries, or only those who act to protect President Bush and Vice President Cheney?"

July 2, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

Early reactions to President Bush's commutation of Libby's prison sentence

Along with my own initial feelings about the Libby commutation, here are some other notable early reactions to President Bush's notable sentencing "ruling":

From my thoughtful colleague Alan Michaels via e-mail:

The President's statement says that he "respects the jury's verdict," which I take to mean concedes Libby's guilt, but that "the prison sentence given to Mr. Libby is excessive," noting the "harsh punishment" of a fine and probation, given the suffering his family and the impact on his personal and professional reputation. I'm sure you'll be making hay of this for your clients, but I am struck by the remarkable hypocrisy of this statement from an administration seeking to have the force of the Sentencing Guidelines restored.

From John here at PowerLine:

This strikes me as an excellent resolution. To my knowledge, it was first advocated by Paul's friend Bill Otis, a former federal prosecutor, in an op-ed in the Washington Post.  The idea quickly gained support.  I also think the President's commutation of Libby's sentence will go over well with the party's conservative base and will contribute, to some degree, to a restoration of Bush's standing with conservatives.

From the often fiery Big Tent Democrat here at TalkLeft:

In the most blatant disregard for the law in quite a while, President Bush commuted Scooter Libby's sentence.  The man is the worst President in the history of the nation and this is merely confirmation of the contempt he holds for the law, the Constitution, and the American People.

CNN's Political Ticker has a lot more reactions here.

UPDATE:  Orin Kerr and Eugene Volokh both "find Bush's action very troubling because of the obvious special treatment Libby received."  Similarly, as noted in this new post, Patrick Fitzgerald and Bill Richardson are also expressing concerns about unequal justice.

July 2, 2007 in Libby sentencing | Permalink | Comments (4) | TrackBack

Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?

The AP provides here President Bush's rather lengthy statement in support of his decision to fully commute the imprisonment portion of Lewis Libby's sentence.  Here are just a few choice quotes from Bush's statement that will likely revolt (or perhaps energize?) any defense lawyer who has ever argued that within-guideline sentences are often excessive:

[C]ritics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury....

Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison....

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged.  His wife and young children have also suffered immensely.  He will remain on probation.  The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.

As one lawyer (among many lawyers) who has made these points repeatedly on behalf many defendants who seem much more deserving of sympathy than Mr. Libby — such as decorated veteran Victor Rita who just had his 33 month sentence affirmed by the Supreme Court for crimes seemingly much less serious than Libby's — I suppose I am pleased to see President Bush demonstrate compassionate conservativism for Libby. 

I now hope that he will instruct all members of the Department of Justice to demonstrate similar compassion for other defendants sentenced under the federal sentencing guidelines.  After all, it seems the President views a significant fines and probation and harm to reputation and family as "harsh punishment."  I am sure a number of defendants now appealing punishments that include also a prison term will be glad to have the top executive now defining what sorts of alternatives to imprisonment are sufficient in his view.

July 2, 2007 in Libby sentencing | Permalink | Comments (8) | TrackBack

BREAKING NEWS: Bush commutes Libby's sentence

I just got this e-mail report from a Wall Street Journal alert:

Bush commuted the sentence of former aide I. Lewis "Scooter" Libby, sparing him from a 2 1/2-year prison term in the CIA leak case. Bush's move came hours after a federal appeals panel ruled Libby couldn't delay his prison term in the case.  Libby was convicted in March of lying to authorities and obstructing the investigation into the 2003 leak of a CIA operative's identity.

WOW!  Comments encouraged below while I think about what I think about this.  Meanwhile, here is coverage from CNN and from the AP

July 2, 2007 in Libby sentencing | Permalink | Comments (14) | TrackBack

A family's civil suit following a botched Ohio execution

Perhaps the most interesting of various new items at the Ohio Death Penalty Information blog is news of Ohio's troubled execution of Joseph Clark last year now resulting in a federal civil lawsuit.  Here are some of the particulars from this post:

Irma Clark, the mother of Joseph Clark — whose botched May 2, 2006 execution by the State of Ohio took nearly 90 minutes — has filed a civil lawsuit against Ohio prison officials and execution team members in the US District Court for the Southern District of Ohio seeking compensatory damages and a jury trial.  (Case is No. 07-0500.  Suit was filed today and assigned to Judge Michael Barrett.)

The relatively short complaint can be accessed here, and ODPI has links to some early press coverage.

July 2, 2007 in Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Libby denied bail pending appeal by DC Circuit

As detailed in this AP article, "former White House aide I. Lewis "Scooter" Libby cannot delay his 2 1/2-year prison term in the CIA leak case, a federal appeals court unanimously ruled Monday."  Thanks to How Appealing, the DC Circuit's one-paragraph order denying bail pending appeal can be accessed at this link

TalkLeft highlights here that, barring a surprise change of course by President Bush, it seem that Scooter better start packing his prison bags.  As the AP article notes, the "U.S. Bureau of Prisons has not yet assigned Libby a prison or given him a date to surrender.  But last week it designated him as federal inmate No. 28301-016."

Some recent related Libby posts:

July 2, 2007 in Libby sentencing | Permalink | Comments (4) | TrackBack

A terrific restorative justice round-up

Scott Henson, who authors the always terrific Grits for Breakfast blog, recently attended a huge national conference on the topic of "Restorative Justice."  He is a report on his reporting from an e-mail:

Though I consider myself fairly well versed in criminal justice theory and practice, much of what was discussed was new to me, and I've spent the last week on the blog writing up some of the portions that interested me most.  Here is a post that links in one place all of the blog coverage of this event on Grits for Breakfast.

July 2, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Will there be any Rita circuit fireworks this week?

Though there have been a few circuit rulings noting the Supreme Court's Rita decision (see here), last week brought more major sentencing decisions from the circuits that did not discuss the Justices' latest Booker wisdom.  (In addition to the Seventh Circuit's notable reversal of a below-guideline sentence in Goldberg (discussed here), on Friday the Eighth Circuit upheld a below-guideline sentence in US v. Jimenez-Guiterrez (available here) and the Tenth Circuit discussed the obligation to state reasons in US v. Romero (available here) without any mention of Rita.)

Though this week ought to be relatively slow with the coming holiday, I suspect that appellate pacing ought to allow circuit judges to cacth up with Rita this week.  And yet, the big question is not when circuits will start citing Rita regularly, but rather whether and how Rita might change how circuits unpack various post-Booker issues.

Some related Rita posts:

July 2, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

The realities of drug-free zones

A helpful reader passed along this interesting article from Florida, entitled "Drug-free zones target blacks unfairly, critics say," discussing the realities of drug-free zones.  Here are some snippets:

On Boynton Beach's Martin Luther King Boulevard, two signs warn that this is a "drug-free school zone," while the sign down the block states that this is a "drug-free park zone."  Alone, either sign means that people caught selling drugs here can face more serious charges and more prison time than drug sellers elsewhere.

Together, the signs mean two sets of raised charges and penalties. And, although no sign says so, churches in the neighborhood and the convenience store across the street mean dealers could face four criminal charges for one drug transaction.  The same four crimes can also be charged to residents of this street caught with saleable amounts of drugs in their homes.  That is because people living on this street live within the overlapping circumferences of four invisible thousand-foot circles.

Across Florida, these circles also surround community centers, day-care facilities, colleges, housing projects, and, after a 2005 addition to state drug laws, nursing homes. "Now they're protecting people who can't even leave the premises," said Anthony Calvello, a Palm Beach County public defender who appealed some of South Florida's first drug-free zone arrests to the state's Supreme Court.  "What's the thinking behind all this?"

While lawmakers put them in all 50 states during the past 20 years, researchers have found the zones have not slowed drug selling.  "The premise was to protect certain places and drive drug dealing away from vulnerable people," said William Brownsberger, a former prosecutor and policy analyst, who in 2001 completed the first critical study of the law in Massachusetts. "But when every place is special, no place is special. What the laws do is lock people up for exorbitant periods of time for relatively low-level crimes."

Police, weary of arresting and rearresting drug dealers, say any law that keeps criminals off their streets for longer is valuable to them.  Opponents of the law say the money now spent on longer prison sentences could be better spent on drug treatment and entrepreneurial training.

Some related posts about drug-free zone laws:

July 2, 2007 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

July 1, 2007

A roadmap for dealing with California's prison woes

As detailed in this AP report and this official press release, an expert body working within the California Department of Corrections has produced this massive new report entitled "A Roadmap for Effective Offender Programming in California."  Here is how the AP report describes the highlights:

Of the roughly $43,000 California spends annually to house each of its prison inmates, just 5 percent goes toward rehabilitation programs.  That will have to change — in a big way — if the state is reduce its inmate population and avoid a federal court takeover of its troubled prison system, according to a report released Friday.

New programs and policies for inmates and ex-cons could eliminate the need for as many as 48,000 prison beds, the report said. The experts who developed the study estimated that could save California taxpayers $561 million to $684 million per year — about 5 percent of the total amount proposed for next year's corrections budget.  More money spent on education, job training, drug treatment, anger management and other programs would lead to less money needed for incarceration because fewer paroled inmates would get in trouble again and return to prison, the report said.

The study was requested by state Sen. Mike Machado as a part of his oversight of the Department of Corrections and Rehabilitation budget through a Senate subcommittee. He called the recommendations, compiled by a panel of 17 national experts, "sound principles for managing our prisons."

The report comes at a time when Gov. Arnold Schwarzenegger and state lawmakers are trying to avoid a federal takeover of the overcrowded prison system, which is about 70 percent over capacity.

July 1, 2007 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Capital reversals in the Keystone state

Thanks to How Appealing, I saw this article from the Philadelphia Inquirer entitled, "Death-row reversals of fortune; In 7 years, 50 Pa. inmates awaiting execution were spared by the courts."  Here are some highlights:

In just the last seven years in Pennsylvania, an estimated 50 inmates who were facing execution have gotten new leases on life behind bars, as federal and state judges overturn death sentences at a rate that is buoying opponents of capital punishment and infuriating prosecutors.

Departures from Pennsylvania's death row — with 225 residents, the fourth largest behind California, Florida and Texas — have roughly equaled arrivals since 2000, and could soon eclipse them.  The appeals pipeline is clogged with condemned inmates fighting for life without parole, at the very least.  Also since 2000, about 75 of them have scored significant interim victories — new sentencing hearings or retrials — typically after courts found serious legal errors in the way their original cases were tried.

July 1, 2007 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

An argument for "consequentialist retributivism"

Michael Cahill has this new paper on theories of punishment available through SSRN that looks quite interesting. The piece is entitled "Retributive Justice in the Real World," and here is its abstract:

There are two commonly recognized “theories” of criminal law: utilitarianism, which sees criminal law's purpose as preventing future harms; and retributivism, which sees criminal law's purpose as punishing past wrongs. One significant but little-discussed difference between the two theories relates to their relative scope: in a meaningful way, utilitarianism presents itself as a complete theory of criminal law, while retributivism does not.

Utilitarianism provides a comprehensive vision of criminal justice that can offer guidance, or at least a clear agenda, regarding both the content of criminal law and the best means for enforcing it. Retributivism, on the other hand, apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to “do” criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender.

This article explores and evaluates the range of options for developing a real-world legal theory, as opposed to an idealized moral theory, of retributive punishment. It concludes that perhaps the only effective, or even plausible, option for doing so would be to adopt the approach of “consequentialist retributivism,” which sees desert-based punishment as a goal to maximize rather than (as other approaches would demand) a categorical ex ante commitment. Interestingly, though this seems like the most intuitively sensible way to implement retributive justice, it is the approach with the least support in the theoretical literature. Thus, this article further seeks to advance the debate by suggesting the appeal (and perhaps the necessity) of employing the hitherto neglected perspective of consequentialist retributivism.

July 1, 2007 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack