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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.

July 12, 2007 at 01:24 PM | Permalink


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It is excessive because it was given to a former partner at Dechert. Duh!

Posted by: S.cotus | Jul 12, 2007 3:07:54 PM

Apparently Judge Walton now thinks that the term "excessive" is inherently objective...it is not of course.

Posted by: SPD | Jul 12, 2007 3:21:07 PM

SPD, what are you talking about? "Excessive" is a relative term. No sentence is excessive in the abstract; it's excessive in relation to something.

Walton notes that the most common baseline against which people measure whether a sentence is "excessive" is common practice in sentencing defendants convicted of the same or similar offenses. In this case, Libby's sentence is in no sense "excessive" in relation to common practice.

It could be that the sentence is "excessive" in relation to Bush's personal views of sentencing, but if that is true then Walton is right to note that Bush's officials have taken positions inconsistent with that sort of argument.

In other words, Bush is free to decline to explain himself, but to the extent that he has, his explanation is certainly "perplexing."

Posted by: | Jul 12, 2007 3:38:20 PM

Wow! The judge's emphasis on the Marshall dissent is quite revealing.

Posted by: P.S. Ruckman, Jr. | Jul 12, 2007 3:45:09 PM

Two fallacies in Judge Walton's reliance on Rita as refuting the claimed excessiveness of Libby's sentence are:
1) excessiveness is an individual judge's (or President's) determination; thus, Justice Stevens thought Rita's sentence was too high, while recognizing that the deferential Booker review standard barred reversal; and Justice Souter did not state whether or not he thought the sentence excessive; and
(2) Rita did not address whether the guidelines on which the district court relied -- which barred consideration of personal factors such as service to one's country -- were or were not actually reasonable; if those guidelines are unreasonable -- and many people certainly think they are, particularly for a wounded war veteran like Rita -- then Rita's sentence was excessive.

Posted by: a defense attorney | Jul 12, 2007 4:00:24 PM

Bush, like me and most of the non-laywer, non-sentencing expert population, probably didn't understand sentencing and probably didn't know what he was saying in the context of everyday sentencing.

His comments add more confusion to an already incomprehensible sentencing scheme. From The Devil's Dictionary:

One of the Creator's lamentable mistakes, repented in sashcloth and axes. Being instated as an archangel, Satan made himself multifariously objectionable and was finally expelled from Heaven. Halfway in his descent he paused, bent his head in thought a moment and at last went back. "There is one favor that I should like to ask," said he.

"Name it."

"Man, I understand, is about to be created. He will need laws."

"What, wretch! you his appointed adversary, charged from the dawn of eternity with hatred of his soul -- you ask for the right to make his laws?"

"Pardon; what I have to ask is that he be permitted to make them himself."

It was so ordered.

Posted by: George | Jul 12, 2007 4:07:51 PM

I don't think he was relying on Rita to show that the sentence was not excessive per se. He cited Rita to illustrate that the executive branch had taken the position that the sentence was reasonable. He also cited Gonzales' proposal to restore the mandatory nature of the guidelines. Clearly, he was taking the opportunity to scoff at the president's purported rationale for commuting the sentence he imposed.

Posted by: Alec | Jul 12, 2007 4:20:37 PM

I must say that I disagree with Judge Walton’s assertion that if a president were to commute a sentence of incarceration and supervised release on the condition that the defendant serve a period of probation, he would “in effect be resentencing the defendant,” which would “almost surely” violate separation of powers principles because only the judiciary has the authority to sentence criminal defendants (at p. 8, n. 8). But this sweeps far too broadly, because the president is “in effect . . . resentencing the defendant” whenever he grants a commutation of sentence. In particular, this fails to account for the fact that presidents have routinely granted conditional commutations that materially change (not only “mitigate”) a judicially imposed sentence. Indeed, some conditional grants of clemency have been premised on the acceptance of onerous constraints, such consenting to deportation and promising never to reenter the US. Presidents have also personally revoked conditional grants of clemency and ordered the arrest and incarceration of the defendant for violating the terms of a commutation granted by a previous president, which is “almost surely” a judicial function. See Lupo v. Zerbst, 92 F.2d 362 (5th Cir. 1937).

Moreover, there is no constitutional impediment that prevents the president from prospectively commuting the terms of a sentence that has not yet been imposed, which “in effect” directly interferes with the judicial sentencing function. For example, on January 20, 2001, President Clinton granted a prospective commutation to Arnold Prosperi, a prominent Florida real estate attorney who had been convicted by a jury of tax evasion and counterfeiting securities in the course of defrauding a client of several million dollars. After the jury’s verdict was returned, the district court granted Prosperi’s post-trial motion for judgment of acquittal on the counterfeiting charges and the government appealed. The Eleventh Circuit reversed and remanded the case for resentencing. See United States v. Prosperi, 201 F.3d 1335 (11th Cir. 2000). Prior to being resentenced, however, President Clinton granted Prosperi’s clemency petition, commuting “any total period of confinement that has already been imposed or could be imposed in the future upon Arnold Paul Prosperi as a result of his conviction . . . in the Southern District of Florida that is in excess of 36 months” and further providing that “any such period of confinement [is] to be served in home confinement.” See Executive Grant of Clemency, Jan. 20, 2001. On remand, Prosperi was sentenced to a term of probation and a fine.

I’m not suggesting that the president’s pardon power is literally without limits. We know that he cannot restore money that has been paid into the Treasury, since Congress has the exclusive constitutional authority to appropriate funds (see Knote). We also know that there are at least some minimal due process or equal protection standards that, theoretically, constrain the exercise of the pardon power (see Woodard). But could he commute a term of incarceration, on the condition that the defendant pay a substantial fine or restitution, thus imposing a new form of punishment? I don’t see why not, since a fine or restitution is generally thought to be a less severe form of punishment than incarceration. The same logic would apply to the commutation of a sentence that includes a term of supervised release, on the condition that the defendant serve a term of probation, which as Judge Walton himself points out (p. 2, n. 2), is a less severe form of punishment.

Posted by: Sam | Jul 12, 2007 4:28:59 PM

"SPD, what are you talking about? "Excessive" is a relative term. No sentence is excessive in the abstract; it's excessive in relation to something."

Uhhh, that was exactly the point...geesh.

Posted by: SPD | Jul 12, 2007 5:11:54 PM

Libby is lucky I wasn't the judge. The "factors" I find most compelling are: (1) he is a lawyer (he knew better); (2) he lied in a judicial proceeding; (3) he was a high ranking government official; (4) he was priviledged in every respect; (5) and he was well represented by many fellow attorneys rather than a low paid over worked public defender. Then, with that in mind, in order to send a message to others who would obstruct the administration of justice, and after "having considered the guidelines" but rejecting them as too lenient in this case, I would impose a non-guideline sentence of 10-years' imprisonment, the statutory maximum for objstruction. His sentence was "excessive" only because he was the president's, and vice-president's friend. No-one else, ever, at least without the personal association to the "commuter", will receive such unprecedented treatment. I would have also remanded him to the custody of the US Marshal on the date he was sentenced, just like 90% of every other federal criminal defendant. As a prosecutor, I have come to love "Booker" because now that the guidelines are truly advisory, some judges have maxed out deserving defendants such as Libby, and the Circuits are fairly consistently upholding such new found discretion.

Posted by: rls | Jul 12, 2007 7:02:08 PM

It occurs to me that nothing would prevent Walton from adding more restrictive conditions to supervised release such as home detention or a halfway house; the courts power to make such a modification at any time for any reason is broad.

Posted by: afpd | Jul 13, 2007 12:27:09 AM

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