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July 5, 2007

Still more sentencing arguments for defendants from the Bush Administration

As stressed in posts here and here and here, President Bush's statement of reasons for commuting Lewis Libby's "excessive" prison sentence provides great material for federal defendants seeking reduced sentences from federal judges.  (Intriguingly, this New York Sun article today explains that an "alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush's commutation.")

It is hard to be certain exactly how judges and others will react to what Ellen Podgor is calling "The Libby Motion".  (Peter Henning adds here reasons why the President's work, legally speaking, "has created a bit of a mess on a number of different fronts.")  What is certain, however, is that every official effort to defend the commutation creates more potential arguments for defendants and defense lawyers.  Consider, for example, these passages from White House spokesman Tony Snow's commentary in USA Today

President Bush commuted part of Lewis Libby's sentence because he considered a 30-month stretch in prison too severe. Libby was convicted of obstruction of justice and perjury; was fined $250,000; must serve two years probation; and will likely lose his license to practice law.  That qualifies as a stern penalty for a first-time offender with a long history of public service....

The president believes pardons and commutations should reflect a genuine determination to strengthen the rule of law and increase public faith in government.... In reviewing the case, the president chose to rectify an excessive punishment, and at the same time, the president made clear that he would not second-guess the jury that found Libby guilty.  He believes it is important to respect the jury's work.  The concept of judgment by a jury of peers forms the backbone of our judicial system.  So the president left intact the felony convictions and two of the major punishments — the fine and probation....

The president was not motivated by politics in making this decision.  If he had made the decision based on opinion polls, he wouldn't have lifted a finger.  Instead, he did what he does normally, and what makes those of us who work for him proud.  He proceeded on the basis of principle, and arrived at a sound and just decision — knowing he would take hits in the court of public opinion, but also knowing he was doing the right thing.

So, anyone working on sentencing issues should understand that President Bush views a fine and probation to be "major punishments" that can qualify "as a stern penalty" in some cases.  In addition, "principle" apparently means that a "just decision" and "the right thing" may sometimes require freeing a convicted felon from any prison term even if this will lead to "hits in the court of public opinion."

Also, for anyone opposing acquitted conduct sentence enhancements, be sure to note that President Bush "believes it is important to respect the jury's work [because] judgment by a jury of peers forms the backbone of our judicial system."  Indeed, in light of President Bush's emphasis on the jury's work in the Libby case, I hope he will soon instruct his Attorney General and his Justice Department to start supporting defendants' efforts to secure fully Blakely rights in the operation of the federal sentencing system.

July 5, 2007 at 09:02 AM | Permalink


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This reminds me a bit of when Apprendi came out. The New York Times was going on and on about some mundane isse, while I remember thinking to myself, people outside this field have no idea how big Apprendi is.

I often tell non-lawyers that I have a 25-year lag theory regarding the public's knowledge of criminal procedure. The American man in the street still believes it is easy to "get off" by pleading insanity; he believes that all felons are out in 6 months; he believes that it is easy to get cases thrown out due to evidentiary loopholes and he believes that there is no system more fair than the American system of justice.

The Libby pardon proves the point. From their statements, neither Tony Snow nor the President have any understanding of how sentencing works under the federal guidelines, which have only be in existence now for 23 years. In spite of Rita, I believe that Bush's gaffe in this manner but not simply pardoning on grounds of mercy is going to sway a lot of judges, even though they may not admit it in court.

Posted by: william | Jul 5, 2007 12:59:00 PM

The President says that he would not second guess the jury, but he commuted a sentence that the jury thought was fair for Libby to serve. We have been believing that the sentencing guidelines have been unfair for years. We believe that alot of defendents should get probation, but they don't. How can you say you respect someones decision, and then change the same decision you say you respect.

Posted by: jubria | Jul 5, 2007 1:51:45 PM

“The President says that he would not second guess the jury, but he commuted a sentence that the jury thought was fair for Libby to serve.”

No he did not. The jury had no knowledge of the sentence until they read about it in the papers. The president’s statements about what was presented to the judge (and not the jury) were correct. The problem, is, according to some that the DOJ routinely advocates for precisely the same kind of fact-finding, and sentencing that Libby received, that the president condemned.

William, I like your 25-year lag theory. I am going to adopt it, because it is much nicer than saying that the public is stupid.

Posted by: S.cotus | Jul 5, 2007 2:53:25 PM

This reminds me of the manner in which clemency applications bumped up in the aftermath of Ford's pardon of Richard Nixon. The logic seemed to be: if the President was willing to pardon A, then he will/should be willing to pardon B. If one person convicted of obstruction of justice is pardoned, all persons convicted of the same offense should be pardoned as well. How does this line of thinking carry on as long as it does? In addition, isn't interesting that, from the standpoint of the media, Libby's case is bizarre and "unprecedented." From the standpoint of those focusing on this very odd approach to pardons and previous sentences, Libby is one of dozens, if not hundreds or thousands. Someone needs to compare notes!

Posted by: P.S. Ruckman, Jr. | Jul 5, 2007 3:07:30 PM

It is a non-argument that Bush did not consider public opinion when making his decision. Of course not, the public opinion of him could not be too much lower, so he had nothing to lose. His decisions are also made without the public's opinion, which is rather non-democratic.

Posted by: Kimberly Gray | Jul 5, 2007 4:07:04 PM

S.cotus, when all is said and done he still does not respect the DOJ or judges or whoever you want to believe that he respected. Jurors miss out on alot of information that is presented to the judge and not the jurors. So what do you mean? His decision was correct and fair? Wrong is Wrong no matter who does it. Or is it when you are a person of "higher" power or because you know somebody. Get Real! Fair is Fair! Just in case you forgot.

Posted by: jubria | Jul 5, 2007 5:58:25 PM

I think even on this page we are seeing the confusion as to the jury's role in federal sentencing, which is very different from most states. In some states, like Virginia, for example, juries may give sentence recommendations that may bind judges to some extent, but that is emphatically not the case in federal court.

Juries in federal court have nothing to do with sentencing. They don't recommend one and they have no idea what the sentences are likely to be. In fact, jurors often indicate that they would not have convicted had they known that the federal sentence was ten times what they had thought it would be.

The jurors vote up or down on individual counts, which assuming a conviction, are then put into a highly complex formula that attempts to set a monthly range for that defendant's sentence, based upon criminal history, acceptance of responsibility, level of culpability and at times, cooperation. In spite of its purported goal of making sentences fair for everyone, it only accomplishes this by making sentences draconian and restricting judges from lowering them, something Bush has promoted with more vigor than even Clinton or his father.

Until about 2 years ago, the formula was basically automatic and unappealable. Judges have slightly more leeway now but the Bush administration and the Republicans have sought to restrict even that bit of leeway, thus resulting in the unassailable charge of hypocrisy against King George.

Posted by: william | Jul 5, 2007 6:27:51 PM

William, I think, as a matter of pure statistics, Virginia is an exception to the rule. The majority rule (in terms of who makes the decisions) is similar to the federal regime (unless there has been some difference in how they tinkered post-Blakely). One (or maybe two) states have a rather strict Blakely-type regime. But, since most of us are lawyers, we all are have some familiarity with the sentencing regimes in at least a couple of jurisdictions.

Posted by: S.cotus | Jul 6, 2007 7:32:48 AM

Right, but the Sentencing Guidelines still operate far differently from the state regimes that most layman are familiar with, although more and more states are adopting guidelines.

Posted by: william | Jul 6, 2007 12:50:45 PM

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