Tuesday, July 17, 2007
One prisoner's reaction to Bush's commutation of Libby's prison term
I recently received an e-mail and letter entitled "Page from a Prison Diary," which set forth one prisoner's reaction to President Bush's decision to commute entirely Scooter Libby's prison term. The text of this "diary entry" is set forth below (and is reprinted here with the author's permission):
PAGE FROM A PRISON DIARY
July 4, 2007
The decision of King George the Dubyah to "fix" the 30 month sentence of his good friend Scooter Libby just came down. It must be nice to have such forgiving padres in high places. Justice for just us! Too bad us commoners must actually abide by the law, no matter how strict, repressive and draconian. Our cases were found to be "reasonable" recently by all 12 Circuit Court of Appeals in the country specifically because each of our respective judges adhered to the U.S. Sentencing Guidelines, which were also used to sentence Mr. Libby. Every federal court in the land has held that any sentence meted out according to the Guidelines can't be "excessive" by virtue of the fact that it does conform to Congressional legislation via the Guidelines.
Most people in prison feel like Libby got a raw deal, which is normal when you deal with the feds. Almost every person that deals with the feds gets shafted in one way or another. It's just what the feds do. Prior to coming to prison 30 months would have been unthinkable, now I eat lunch with guys who have been given 30 years or more on little more than the word of a jailhouse snitch, to save his own ass and a "Nifonged" prosecutor. Our system will devour you if you have little or no money. Our Criminal Justice "system" is truly "criminal" in every sense of the word. Why worry about the law when Dubyah says, "Don't do the time if you a friend a mine!" "All animals are equal, some are just more equal than others" is a fitting testament to our biased system of judicial mine fields, fine tuned for maximum harm (to some).
America is a great country but do we really want to lead the rest of the entire planet in locking up millions of our citizens, many times with questionable suspect charges and slanted courts? A similar thing happened many years ago in ancient Rome when Tacitus wrote in his diary, "Rome (and the U.S.) shall suffer now from its laws as it hither to forth suffered from its vices."
Regards form the other side,
Monday, July 16, 2007
Rita makes a Libby motion of sorts in seeking SCOTUS reconsideration
Lyle Denniston reports here at SCOTUSblog that Victor Rita's lawyer "relying on President Bush's clemency ruling in the CIA leak case, urged the Supreme Court on Monday to reconsider its June 21 ruling upholding the 33-month prison sentence" for his client. There's more:
Going even further, Assistant Federal Public Defender Thomas N. Cochran of Greensboro urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. (The text of the petition, with attachments, can be found here.)
The President's explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, "directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive's own Solicitor General in this case."
It would be, of course, very surprising for the Supreme Court to decide to reconsider Rita or Booker, but perhaps the Court will at least order the Solicitor General to respond.
Anyone know when the Court last granted a motion for reconsideration? Anyone know what timing rules would apply for anyone interested in filing an amicus brief in support of reconsideration? Anyone else hoping that maybe Justice Scalia will see fit to write an opinion in response to this motion no matter what the Court decides to do?
Will "Libby motions" ever work? Will we be able to tell?
Writing in the San Francisco Chronicle, Bob Egelko has this new article entitled "Double Standard: Bush's leniency for Libby doesn't jibe with administration's push to enforce mandatory minimum sentences." The title spotlights the article's main theme, though the piece ends by noting two cases involving so-called "Libby motions" — i.e., arguments from defense attorneys likening a defendant's circumstances to Libby's and quoting Bush's commutation message when seeking a below-guidelines sentence.
This article's discussion of two cases involving Libby motions highlights the challenges that observers and researchers may face when trying to gauge and assess the impact of Bush's commutation on federal sentencing realities. I doubt that many (or even any) federal judges will state on the record that that they reducing a defendant's sentence simply because President Bush reduced Libby's sentence. And yet, even if a judge asserts that the President's sentencing break for Libby is irrelevant to the case at hand, it is certainly possible that the judge has concluded (perhaps subconsciously) that some defendants other than just Libby merit a bit more compassion in the application of federal sentencing rules.
Friday, July 13, 2007
More notable commutation ripples in the sentencing waters
I have started a new category archive entitled Post-Libby commutation developments, in part because the ripple effects of President Bush's sentencing work in the Libby case could take many forms and could last longer than Scooter's terms of supervised release. (Indeed, a thoughtful sentencing advocate wrote me suggesting that everyone "interested in federal sentencing reform should welcome [the commutation], which is much bigger than Libby, and may be the most important development in federal sentencing since 1984.")
One notable ripple from the commutation stone thrown into the sentencing pond appears in this post from the blog at Stop the Drug War, which is entitled "We Want Pardons: Petition to Save Bush's Legacy by Persuading Him to Pardon Thousands of Nonviolent Drug Offenders and Not Be a Hypocrite." The post provides the text to this on-line petition addressed to President Bush, and here are some excerpts from the petition:
We, the undersigned, ask you to save your legacy by releasing thousands of nonviolent drug offenders from federal prison before you leave office. Short of taking such a measure, you will be doomed to go down in history as a hypocrite.
Unlike President Clinton, you cannot point to a record of mercy toward people caught in the criminal justice system. While the overall Clinton record in criminal justice was not lenient, he did commute the sentences of 63 people, most of them neither wealthy nor powerful, including 29 nonviolent drug offenders.
You, by contrast, commuted only three prisoners' sentences prior to helping Scooter Libby, one every two years. You have pardoned four times as many Thanksgiving turkeys as people you've released from prison....
You have a year and a half left to prove that justice is for everyone -- not just for your friends. Will you rise to the occasion? History is watching.
Similarly, this new editorial from Newsday, entitled "Use Libby case to fix sentencing," seeks to make lemonade from Libby lemons. Here is an snippet:
Though not Bush's intention at all (which is clear from the pile of 2,500 commutation and 1,000 pardon requests sitting at the Department of Justice), the president, by calling Libby's sentence "excessive," cast attention on minimum sentencing guidelines, the very ones his administration has been working to make mandatory. The message behind Bush's self-protective benevolence has validity despite its messenger and surrounding circumstances.
Thursday, July 12, 2007
America's pastimes?: Baseball, clemency, obstruction
At yesterday's House Judiciary Committee hearing on Bush's commutation of Libby's sentence (basics here), there was only a little discussion of whether and how lawyers and judges would respond to the President's sentencing work in other cases. But this issue has been very effectively covered at White Collar Crime Prof, where Peter Henning now has this new post discussing (and providing this link) to a supplemental brief filedt by the defense team for Troy Ellerman, which is "aligning the attorney who leaked the grand jury testimony of Barry Bonds and other athletes about their steroid use in the Balco investigation with the erstwhile former chief of staff to Vice President Cheney."