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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. 

All the witnesses' testimony and a webcast of the hearing can be accessed at this link.  I am eager to hear via comments any and all feedback on my written testimony or on the hearing itself.

July 11, 2007 at 08:22 PM | Permalink


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I found your written testimony very persuasive, especially the poignant contrast of Bush's decision to commute Libby's sentence with his refusal to grant clemency to your client Mr. Washington. I was most stricken by a point that had been raised somewhere else, but which you treated well in the testimony: the sad irony of the timing of the Supreme Court's opinion in the Rita matter and the Libby commutation just days later, given their virtually opposite philosophical, logical, and legal underpinnings.

Posted by: Ed | Jul 11, 2007 10:30:32 PM

Thanks, Ed, for suggesting my testimony is a keeper.

Posted by: Doug B. | Jul 11, 2007 10:35:10 PM

Thanks for the written testimony. I would love to pick your brain about some things in it, once I look it over, I'm sure.

The live web cast finally kicked in for the last session so I was able to catch some of it. My thoughts were reflected in what you wrote above. I wondered if you felt as out of place / impatient as I would have felt, sitting there with expertise in what I research and having to listen to everyone talk about everything else. The questions that were asked to you did not seem very interesting either. They were more rhetorical than anything. "Do you think sentencing should be unfair and biased in favor of certain people with political connections?" That wasn't a real question, of course. But that certainly was the feel that they had, in my view. In my mind, you were the best source of information they had in the room and they danced all around you. But, then again, that may be my academic bias coming through.

To me the larger problem is this: sentencing and pardoning are really two wildly different things and the premises, logic, and understandings associated with each are not transmissible.

Now, stop avoiding the REAL issue ... what were the snacks like? Did they have a classy spread of goodies for the visitors? Or, was it crackers and bottle water? Do tell!

Posted by: PSRuckman | Jul 11, 2007 10:54:15 PM

I have a question (echoing PSRuckman's comment)--why is a pardon relevant at all to sentencing law? Isn't the pardon power designed to be the safety valve which gives legitimacy to necessarily harsh laws?

Posted by: federalist | Jul 11, 2007 11:32:00 PM

It's not the commutation per se that is relevant. It's the statement of reasons for the commutation--all of which are diametrically opposite to the administration's arguments in Rita and in USSG cases generally.

Absolutely, the pardon power is designed to be a safety valve. District court discretion to depart from rigid guidelines is also supposed to serve the same function--to avoid unnecessarily rigid and harsh results. It is built into the SRA, and is supposed to have meaningful application after Booker. If it were allowed to function, it would largely ameliorate the need for a pardon safety valve in all but the most extreme cases.

I'm sure it was frustrating to be the available expert on something the panel wasn't really all that interested in--a serious discussion of sentencing policy. On this day, at least, it was not really possible to separate the policy analysis from the elephant in the room--the President's decision to discard (or, if you believe his statement, reverse) policy when the fate of a friend is at stake. It was a day to explore hypocrisy and above-the-law behavior. Sentencing policy was a fig leaf.

Posted by: Def. Atty. | Jul 12, 2007 11:15:06 AM

I think the consequences of the partisan antics of the committee will be 1) even less use of the pardon power, especially by Republican presidents 2) less public explanation for pardon decisions - which does not have to be provided to begin with and/or 3) less sincere public explanations for pardons.

The attempt to apply sentencing guidelines in a retropective, class-action kind of way does have a kind of intuitive, sound-bite appeal. But I don't think it really holds up under much scrutiny. As a result, no president will ever feel contrained by what happens in such hearinds and no legislation will be forthcoming.

Members of Congress will continue to support the pardon applications of members of their districts/states and/or fellow partisans and generous donors. They will not support all applications from their districts/states with equal enthusiasm. They will discriminate and select with exceptional bias, all the while pointing their fingers at whoever happens to be president.

Posted by: P.S. Ruckman, Jr. | Jul 12, 2007 12:25:47 PM

federalist, the second sentence of the written testimony begins this way: As I will explain, President Bush’s commutation was fundamentally a sentencing decision...

I suggest that the remainder of the written testimony might answer your question.

Posted by: | Jul 12, 2007 5:31:03 PM

Well, yes, I do see the assertion made, and more than once. But what I do not see is a cogent argument that clemency decisions are sentencing decision. Obviously, they are related, as both are related to fact-finding, jury deliberations and the crime itself. But that surely can't be enough to press that point that they are the same. I think of some obvious differences between clemency and sentencing, but what are the similarities that justify the position you are taking?

Posted by: P.S. Ruckman, Jr. | Jul 13, 2007 10:57:34 AM

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