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July 3, 2007

More reactions to Bush's commutation of Libby

Cut-and-pasted straight from my e-mail is another set of reactions from other informed readers to President Bush's decision to fully commute the imprisonment portion of Lewis Libby's sentence.

First, from an FSR editor:

RELEVANT CONDUCT: "Is that Relevant?" Although he cast it in terms of what "critics" are saying, the President seems troubled that Mr. Libby was sentenced "in part on allegations never presented to the jury."  Indeed, this is a big and troubling issue.  Just ask former Alabama Governor Don Siegelman (D) whose guideline range was increased because of acquitted conduct (discussed here).

Sentencing scholars have criticized the federal guidelines' (over)reliance on so-called relevant conduct for years.  Maybe DOJ and the Commission will pay attention now that the President himself has come out against relevant conduct. In fact, look for defense attorneys to seek -- and maybe some Judges to grant  -- downward departures/variances based on the use of relevant conduct.  Sounds like a "reasonable" sentencing conclusion to me, but I guess we will have to wait for the Supreme Court's coming discussion of reasonableness in Gall to know for sure.

PARDONS ISSUE:  "We Knew Commutation Before Commutation Was Cool." The Federal Sentencing Reporter is always spotting and exploring crucial sentencing developments.  With the Libby commutation all the rage, Iconsider the excellent FSR double issue on pardons from 2001 (on-line access here). In that issue, legendary sentencing law professor and FSR founding editor Dan Freed teamed up with Professor Steve Chanenson of Villanova Law School (also an FSR editor), and Margy Love, the former DOJ Pardon Attorney to create an authoritative review of pardons and clemency.  Several of those articles are available for free on the linked site and the whole issue is still available for purchase.

In the wake of the Libby case, two articles jump out as must reads.  First, Professor John Harrison of Virginia Law explores the history of pardon and the President's "power of doing good without a rule."  Second, Professor Daniel Kobil of Capital Law discusses whether the President should be required (or encouraged) to explain his grants of clemency.  This topic is particularly relevant because President G.W. Bush, like President G.H.W. Bush before him, gave some insight into his thinking about clemency.  These articles are only the tip of the iceberg from this rich collection of original articles and hard-to-find primary sources on clemency. Enjoy!

Second, from another very knowledgeable reader:

I hope that the Libby "resentencing" (as you quite correctly describe it) will lead some (if not the Presidnet) to point out that there are many many others who are serving prison sentences that are unwarranted by any consideration of public safety or deterrence -- some of them are freaksih in their length.   PLEASE continue to point out the injustice of the President's limiting consideration to this one person, and ignoring so many others with even greater claims to his mercy.  Pleae also point people to this op-ed from Margaret Love of a couple of weeks ago.  

July 3, 2007 at 11:54 AM | Permalink


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Ha ha, the Siegelman treatment. You know that his lawyers have already asked for the same action by the president, right?


Montgomery-based attorney Susan James, who handled Siegelman's sentencing hearing, predicts that President Bush's decision to commute Libby's sentence will be referenced in briefs across the country soon -- including her own.

"[Bush] has basically come in and said the sentence is too harsh," James said. "I'll find some way to weave that into our argument."

Yeah, that's going to happen. See, the difference here is that Libby can testify against Cheney and bring down the Bush administration. And Don Siegelman can't. So as far as Bush is concerned, Siegelman might as well be Karla Faye Tucker.

Posted by: tekel | Jul 3, 2007 1:19:40 PM

Tekel, The point being made is that the executive now appears to articulate a theory of reasonableness (as well as the remedial part of Booker being incorrect) at odds with its position up until yesterday evening.

Posted by: S.cotus | Jul 3, 2007 2:09:25 PM

Tekel, The point being made is that the executive now appears to articulate a theory of reasonableness (as well as the remedial part of Booker being incorrect) at odds with its position up until yesterday evening.

Posted by: S.cotus | Jul 3, 2007 2:09:34 PM

Does the DC Circuit have a presumption of reasonableness?

Posted by: Steve | Jul 3, 2007 2:31:47 PM

Yes. US v. Dorcely, No. 3130 (D.C. Cir. July, 21, 2006).

Posted by: S.cotus | Jul 3, 2007 2:57:04 PM

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