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March 6, 2009

"The Libby Letters: Reflections on Sentencing and Mercy in a Post-Booker World"

The title of this post is the title of a great-looking new article from Professor Scott Sundby, which just showed up here on SSRN. Here is the abstract:

Much has been written about the Booker revolution that led to the fall of the mandatory Federal Sentencing Guidelines.  Because the Guidelines had been widely assailed as a rigid system that frequently led to unjust sentences, it comes as little surprise that most of the commentary has been celebratory.  With the judiciary's new found discretion comes the chance to bring mercy back in from the cold after years of exile.

Now, however, the hard work begins. The Guidelines, despite their shortcomings, were instituted in response to a very real problem of disparity in sentencing. The challenge that lies ahead, therefore, is to see if the legal system can accommodate the judiciary's new found discretion without slipping back into a system where a sentence might turn on race, socio-economic status, or the happenstance of which judge is assigned to the case.  In short, while Shakespeare beautifully captured mercy's allure when he penned Portia's famous lines, The quality of mercy is not strain'd, it droppeth as the gentle rain from heaven, it turns out that giving voice to mercy in the nitty-gritty of a courtroom sentencing is surprisingly difficult.

This Article uses the sentencing of Lewis Scooter Libby to explore the potential difficulties that lie ahead in a post-Booker world. Libby, who was Vice President Cheney's chief-of-staff, was tried and convicted for crimes coming out of his role in revealing that Valerie Plame was a CIA agent. Prior to his sentencing, a number of citizens submitted letters to the judge, some arguing that Libby deserved mercy based on factors like long public service, while others stated that justice demanded the most severe sentence possible.  With their refreshingly non-legal perspectives on mercy and justice, these letters offer a rich trove of material for asking what factors warrant leniency. Using the lessons learned from the letters, the Article examines various ways that we might identify what mercy factors should be recognized.  The Article concludes by looking at how judges might exercise their discretion to ensure that the virtue of mercy does not become an unintentional vice by allowing inequality and arbitrariness to creep back into sentencing.

To paraphrase a line from a well-known movie, this article had me at "Libby Letters."  I am looking forward to finding time this weekend (even through we all get one less hour) to review and reflect all the insight that the abstract portends.

March 6, 2009 at 06:53 PM | Permalink


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The real problem isn't the application of mercy, it's the threshold issue of deciding which people one plans on being merciful too. While justice is not always a zero sum game, in most cases there are competing claimants to the throne. Getting caught up in deciding whether Libby's long service is a mitigating or aggravating factor assumes that the application of mercy first and foremost should be directed to the person being charged. Why should the focus be on whether the criminal deserves mercy rather than a focus on what is most merciful to his victims?

Unlike the author, I don't think the Booker revolution was because of the problem in disparity of sentencing. There is always going to be disparity in sentencing; there always should be disparity in sentencing. The rub of the matter is what factors should such disparity turn on. And I am not convinced that "mercy" is a factor that should be accounted for at all, and if it is a factor, why the criminal should be the focus of that consideration.

Posted by: Daniel | Mar 8, 2009 11:55:26 PM

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