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July 5, 2007

Should Bush's commutation reasons prompt the USSC to amend the federal sentencing guidelines?

The Supreme Court's decision in Rita — which, of course, declared reasonable Victor Rita's 33-month prison sentence for perjury and obstruction — stressed the importance and value of reasons given for federal sentencing decisions to aid the evolution of sound sentencing guidelines.  Here is how Justice Breyer's opinion for the Court expressed this idea:

By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve.... [H]is reasoned sentencing judgment ... can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.  The reasoned responses of these latter institutions to the sentencing judge's explanation should help the Guidelines constructively evolve over time.

These evolutionary insights, it seems, also ought to apply to the reasons articulated by a President for his sentencing decisions.  Specifically, the US Sentencing Commission should seriously consider guideline amendments responding to President Bush's stated concerns about the "excessive" nature of Scooter Libby's (within-guideline) sentence.

In his official statement supporting his commutation order, President Bush stressed the damage to reputation, the suffering of family, and related "long-lasting" and "harsh" consequences stemming from Libby's felony conviction.   President Bush also noted that Libby was a "first-time offender with years of exceptional public service" whose sentence was "based in part on allegations never presented to the jury."  In light of these statement, I urge the USSC to start working on amednments lowering applicable guidelines sentences for (1) true first offenders with a history of prior good works, and for (2) defendants who suffer significant collateral consequences from a felony conviction.  I also think that the USSC ought to urge sentencing judges to give less weight to contested allegations not subject to jury determination. 

Arguably, if the existing sentencing guidelines were not so dismissive of positive offender characteristics or were not so open to the consideration of disputed relevant conduct, perhaps the President would not have felt a need to intervene on Libby's behalf.  Moreover, as many have already suggested, Scooter's break based on these factors is especially disconcerting if no other defendants get the benefits of the President's sentencing doubts.

July 5, 2007 at 12:19 AM | Permalink


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I am a little mystified at the implication that individual clemency decisions should have a retroactive or class-action component, or not be granted at all. In addition, I think it is important to remember that, historically, presidents have offered no justification whatsoever for their clemency decisions - even the "controversial" ones. I guess they aren't interested in feeding these types of concerns. Finally, if you think Bush's explanations are not impressive, read this:


Posted by: P.S. Ruckman, Jr. | Jul 5, 2007 11:37:34 AM

Once again, people like Ruckman apparently do not understand the thrust of this blog. No one is saying Bush can't pardon someone for any reason he wants.

What is earthshattering about Bush's action is the blatant ignorance he apparently has about how federal sentencing works and the blatant hypocrisy of his interest in sentencing unfairness in only this case.

I have no partisan ax to grind. Clinton's statements that the war on drugs was too severe upon leaving office was about at the same level of hypocrisy, after he did nothing to try to change the system during 8 years in office.

Posted by: william | Jul 5, 2007 1:21:27 PM

>No one is saying Bush can't pardon someone for any reason he wants.

And no one is saying they are. What does seem to be implied here is that whatever reasons are given should rise to the level of policy, be applicable retroactively to all persons similarly situated and fit into a system of "guidelines." In sum, the beef seems to be with the pardon power in the system of checks and balances.

Posted by: PSRuckman | Jul 5, 2007 9:46:03 PM

The issue is the blatant hypocrisy, which given that Bush and Snow seem oblivious to how the Guidelines work, could actually be nothing more than abject ignorance, if that makes you feel better about your President.

Ultimately, Bush articulated the very same reasons that criminal defense attorneys always elucidate on behalf of their defendants. While this may not carry a precedential force of law, it certainly may portend a turning point, as ideas cannot easily be bottled up once unleased.

Posted by: william | Jul 5, 2007 11:14:29 PM

> While this may not carry a precedential force of law

You just don't seem to get it. I am saying that it doesn't have such force, nor should it.

> it certainly may portend a turning point

I seriously doubt it. I understand the thinking, but I doubt it. Jimmy Carter commuted the sentences of individuals who shot up the House of Representatives and hit several congressmen. They did not ask for clemency or even apply for parole. They expressed no remorse and said, if they could, they would do it again. One of them tore up the clemency warrant and threw the pieces into a cheering crowd at Chicago's O'Hare airport.

Result? Impact? Evidence of a turning point in the administration of the law?


Posted by: P.S. Ruckman, Jr. | Jul 6, 2007 3:33:37 PM

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