Friday, March 06, 2009
"The Libby Letters: Reflections on Sentencing and Mercy in a Post-Booker World"
The title of this post is the title of a great-looking new article from Professor Scott Sundby, which just showed up here on SSRN. Here is the abstract:
Much has been written about the Booker revolution that led to the fall of the mandatory Federal Sentencing Guidelines. Because the Guidelines had been widely assailed as a rigid system that frequently led to unjust sentences, it comes as little surprise that most of the commentary has been celebratory. With the judiciary's new found discretion comes the chance to bring mercy back in from the cold after years of exile.
Now, however, the hard work begins. The Guidelines, despite their shortcomings, were instituted in response to a very real problem of disparity in sentencing. The challenge that lies ahead, therefore, is to see if the legal system can accommodate the judiciary's new found discretion without slipping back into a system where a sentence might turn on race, socio-economic status, or the happenstance of which judge is assigned to the case. In short, while Shakespeare beautifully captured mercy's allure when he penned Portia's famous lines, The quality of mercy is not strain'd, it droppeth as the gentle rain from heaven, it turns out that giving voice to mercy in the nitty-gritty of a courtroom sentencing is surprisingly difficult.
This Article uses the sentencing of Lewis Scooter Libby to explore the potential difficulties that lie ahead in a post-Booker world. Libby, who was Vice President Cheney's chief-of-staff, was tried and convicted for crimes coming out of his role in revealing that Valerie Plame was a CIA agent. Prior to his sentencing, a number of citizens submitted letters to the judge, some arguing that Libby deserved mercy based on factors like long public service, while others stated that justice demanded the most severe sentence possible. With their refreshingly non-legal perspectives on mercy and justice, these letters offer a rich trove of material for asking what factors warrant leniency. Using the lessons learned from the letters, the Article examines various ways that we might identify what mercy factors should be recognized. The Article concludes by looking at how judges might exercise their discretion to ensure that the virtue of mercy does not become an unintentional vice by allowing inequality and arbitrariness to creep back into sentencing.
To paraphrase a line from a well-known movie, this article had me at "Libby Letters." I am looking forward to finding time this weekend (even through we all get one less hour) to review and reflect all the insight that the abstract portends.
Thursday, July 12, 2007
Libby's term of supervised release upheld (with some fireworks)
Unsurprisingly, and in accord with all the parties' suggestions, Judge Reggie Walton held today, in a ruling available here thanks to How Appealing, that Lewis Libby's sentence of supervised release remains in effect. Josh Gerstein, writing for the New York Sun, has more here.
Judge Walton's ruling is a great read, and the fireworks start with a lengthy first footnote that cites Rita, the government's brief in Rita, a speech by the Attorney General and concludes by explaining that "it is fair to say that the Court is somewhat perplexed as to how its sentence could accurately be characterized as 'excessive.'"
UPDATE: Lyle Denniston at SCOTUSblog presents an overview and analysis of Judge Walton's ruling in this post.
More commutation converage and commentary
NPR this morning has this coverage of yesterday's JHouse udiciary Committee hearing on Bush's commutation of Libby's sentence (basics here). In addition, writing in the Detroit Free Press, the attorney general of the state of Michigan, has this strong commentary entitled "Bush wrong to commute Libby's sentence: Action undermines need for truth." Here are excerpts:
Ultimately, no one was ever convicted of divulging Plame's name to the press, so it is legitimate to ask whether Libby's perjury matters. The same question could be posed regarding President Clinton's lying under oath about engaging in "sexual relations" with Monica Lewinsky. Or, more to the point, do these "lies" matter?
I answer most assuredly yes. I spent years as a homicide prosecutor in a big city, Detroit, where each and every case presented the opportunity for perjury by witnesses, and perjury that would matter, perjury that was literally a matter of life and death.
Clinton's supporters and the supporters of Libby share a common class-based myopia: Neither one can see what sort of damage the tolerance of perjury does to the thousands of criminal prosecutions that happen every year. In essence, the defenders of Clinton and Libby say that if you lie during the course of a white-collar prosecution, it is somehow permissible.
Where does that leave all the witnesses to violent crime who oftentimes are faced with the very real dilemma that truthful testimony about a criminal offense will subject them to the very real possibility of retribution? Are we to tell those who witness violent crime, and thus face very real risks of retribution, that they must tell the truth, while those who are witnesses to white collar crimes are free to fudge and prevaricate?
I applauded when Martha Stewart was sentenced to prison for lying under oath about receiving inside stock information. I felt that justice was done when rapper Lil' Kim was sentenced to almost a year in prison for lying under oath about a shooting. Is it because I take a perverse pleasure in people going to prison? No.
Any time our criminal justice system ensures that the truth-telling function of our system is alive and viable, it is a cause for celebration for all citizens. Telling the truth under oath can be uncomfortable; it can be embarrassing and lead to problems for one's friends and associates, but fudging or protecting one's friends or family does not and cannot commute the necessity for truth-telling.
Simply put, our system of justice depends on truth-telling. Without that rigor, without that pressure, without that compunction to tell the truth, our system of justice will die. As a nation, we must demand that our public officials honor that pact. I have no doubts that Libby is basically a good man. At the same time, a jury of his peers has affirmed his guilt for lying under oath.
If truth is a pillar of our system of justice, then not telling the truth dramatically damages the structural support of that same system of justice. Lying under oath deserves to be punished. And President Bush was wrong to commute Lewis Libby's sentence.
Wednesday, July 11, 2007
Adventures in partisan wonderland
My day in DC testifying at the House Judiciary Committee hearing on Bush's commutation of Libby's sentence was quite an experience. Sadly, only a small part of the VERY lengthy hearing was about sentencing issues, principally because the presence of Joe Wilson as a witness led to much partisan bickering over Valerie Plame and yellow-cake uranium (which sounds like a new Cold Stone Creamery flavor).
After my travels and a chance to catch up on other happenings, I hope to be able to comment with some perspective on what the Bush commutation might come to mean for federal sentencing law. Today's fun just reinforced that (unsurprisingly) some politicians are more interested in political soundbites than sentencing policies.
Monday, July 09, 2007
Mr. Blogger goes to Washington
This post at TPM Muckraker reports the witness list for Wednesday House Judiciary Committee's hearing on Bush's commutation of Libby's sentence. As you will see, the eclectic list of five witnesses includes yours truly. Needless to say, I'll be talking about sentencing issues.
Interesting Libby developments on two fronts
This new AP story update a lot of interesting on-going Libby stories. Here are highlights:
House Judiciary Chairman John Conyers exhorted President Bush Monday to allow top aides to explain to Congress why Bush commuted I. Lewis "Scooter" Libby's prison sentence. In a letter to Bush on Monday, Conyers said the commutation was troubling and could eliminate Libby's incentive to provide information about the administration's role in leaking the identity of former CIA officer Valerie Plame Wilson....
In another development, White House counsel Fred Fielding told U.S. District Judge Reggie B. Walton that the confusion over Libby's commuted sentence is unnecessary. ... Walton said in court documents that the law "does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration." In a letter to the judge, Fielding said that Libby should simply report to probation officers as if he was recently released from prison.
Under supervised release, Libby would have to submit written reports to probation officers each month and secure full-time employment. He would be prohibited from traveling without permission.
Thanks to How Appealing, you can read the Fielding letter, which is actually addressed to Special Counsel Fitzgerald, at this link. I will post the Conyers letter when I find it on-line.
UPDATE: Thanks to a helpful fellow blogger, I leanred the Conyers letter is available at this link.
ANOTHER UPDATE: As Peter noted in the comments, this post at SCOTUSblog has all the filings on the supervised release issue flagged by Judge Walton. Apparently everyone is saying that Libby is still subject to supervision for two years.
Sunday, July 08, 2007
The inside backstory on the Libby commutation
Michael Isikoff has this fascinating piece in the July 16, 2007 issue of Newsweek entitled "Friends in High Places: Inside Bush's decision to give Scooter Libby a pass." Here is an excerpt:
Behind the scenes, Bush was intensely focused on the matter, say two White House advisers who were briefed on the deliberations, but who asked not to be identified talking about sensitive matters. Bush asked Fred Fielding, his discreet White House counsel, to collect information on the case. Fielding, anticipating the Libby issue would be on his plate, had been gathering material for some time, including key trial transcripts. Uncharacteristically, Bush himself delved into the details. He was especially keen to know if there was compelling evidence that might contradict the jury's verdict that Libby had lied to a federal grand jury about when — and from whom — he learned the identity of Valerie Plame Wilson, wife of Iraq War critic Joe Wilson. But Fielding, one of the advisers tells NEWSWEEK, reluctantly concluded that the jury had reached a reasonable verdict: the evidence was strong that Libby testified falsely about his role in the leak.
The president was conflicted. He hated the idea that a loyal aide would serve time. Hanging over his deliberations was Cheney, who had said he was "very disappointed" with the jury's verdict. Cheney did not directly weigh in with Fielding, but nobody involved had any doubt where he stood. "I'm not sure Bush had a choice," says one of the advisers. "If he didn't act, it would have caused a fracture with the vice president."
Saturday, July 07, 2007
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:
Friday, July 06, 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
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."
Thursday, July 05, 2007
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.
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.
Wednesday, July 04, 2007
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.
Tuesday, July 03, 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.
Strong Scooter commentary around the blogosphere
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:
- From Ellen Podgor at White Collar Crime Prof Blog: Commentary on Bush's Commuting of Libby's Sentence
- From Orin Kerr at The Volokh Conspiracy: "Politics" and the Libby Prosecution and Why Didn't Fitzgerald Close Up Shop After Learning That Armitage Was the Leaker?
- From Mark Osler at Osler's Razor: Yes, I do have some thoughts on the commutation of Lewis "Scooter" Libby's sentence!
- From Jeralyn at TalkLeft: Hypocrisy, Thy Name is Bush
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.
If any prison time for Libby is excessive and inappropriate, what about...
some other notable federal sentences like...
- the 33-month federal prison sentence for nearly identical crimes for decorated military veteran Victor Rita (basics here)?
- the 60-month federal prison sentence for minor drug sales for decorated military veteran Patrick Lett (basics here)?
- the 11- and 12-year federal prison sentences for bad mistakes made while protecting our border for Agents Ignacio Ramos and Jose Alonso Compean (basics here)?
- the 55-year federal prison sentence for minor drug sales for Weldon Angelos (basics here)?
or some notable state sentences like...
- the 27-month state prison sentence for providing alcohol at their son's teenage birthday party for two parents (basics here)?
- the 10-year state prison sentence for consensual oral sex between teenager for Genarlow Wilson (basics here)?
- the 200-year state prison sentence for downloading child porn for Morton Berger (basics here)?
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.
Monday, July 02, 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:
- BREAKING NEWS: Bush commutes Libby's sentence
- 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
- Fitzgerald's reaction to the Bush communtation of Libby's prison sentence
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?"