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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 at 11:39 PM | Permalink


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I wonder if Scooter has any firearms (he is a bud of the VP afterall) in his home? Felon in Possession???

There are some jurisdictions that require even felons to register locally with the police department. I wonder if Scooter will happen to live in one of those places?

Posted by: Deuce | Jul 4, 2007 12:28:55 AM

The fact is the law needs to be changed. Bush is right and what is fair for Libby should be fair for every man or woman who stands in front of a judge. The Ausu are not for Justice but the judge should be. The Ausu will do and use everything to put and keep the innocent and non-innocent to die in prison. The prison is overcrowded by 2mm people due the same sentence harshness. Its ok when it is the blacks, hispanics, poor and uneducated, but it is not ok for the friends or families of the rich, famous or the president. I am not a Bush fan but for the first time, Bush spoke out on something that has been affecting the families and taxpayers of America. The Ausus are using acquitted conducts, uncharged conducts, conspiracy, no evidence, informants, threats and lies to keep people in prison for a life time. The shame is on the legal system, judges and the Ausu. Yes, people should be punished for crimes and some should not see the light of day again but for others, Bush's word is an inspiration that he believe the harsh sentences are unfair and should be considered by Congress and the judges. This injustice has been ignored for a very long time and should not be applied to just Libby but to every human being. Someone doesn't need 10 years in prison for oral sex, 55 yrs in jail as a first time offender of marijuana and gun, death for someone who download pornography, life for gun possession when uncharged murder was not heard by the jury. The shame is people do not trust the lawyers, prosecutor, judges (legal system) to get a fair trial and are forced to take plea deals or be buried in prison. People are afraid to stand a so called fair trial, a constitutional right. Our legal system is a joke. The outcry from the Ausu is more than I can stand. Where is the outcry when a young person is locked away for 55 years, w/2 small children and wife. Where is the outcry when a person is sentence harshly for four uncharged, unproven conducts, not heard by the jury, statue of limitation expired. Where is the outcry for all the small time drug dealers in prison serving over 20 years. Where is the outcry for the children and families of these inmates. Most inmates would trade for Libby's 2 1/2 yrs and would feel justice was served. If the Ausu cares about justice, they too should be applauding Bush and saying enough is enough. Bush got it right. The impacting difference is he did it for a friend instead for a person serving a harsh sentence imposed unjustly and unfairly.

Posted by: Welch | Jul 4, 2007 12:06:15 PM

Wait -- Isn't Bush the big proponent of the Unitary Executive? On that theory, the rationale for the Libby commutation is not just an embarrassment to line Assistant US Attys, it is a binding declaration of the government's new sentencing policy, isn't it? Doesn't the Solicitor General now have to consent to rehearing of Rita on that ground, so he can correct the government's stated position on reasonableness? Doesn't the Administration have to withdraw that proposed "topless Guidelines" legislation introduced a few weeks ago? Obviously, the folks who submitted it to Congress (some guy named Gonzales, I think, who obviously failed to check with the White House first) were out of step with the President's -- that is, the Executive's -- policy on these matters.

Posted by: Peter G | Jul 4, 2007 3:45:16 PM

Great Job! Great Site! Very Interesting! Thanks!

Posted by: מוסך פורד | Jan 6, 2011 6:22:40 AM

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