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."