Sentencing Law and Policy

"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.

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.

More commutation converage and commentary

NPR this morning has this coverage of yesterday's JHouse udiciary Committee hearing on Bush's commutation of Libby's sentence (basics here).  In addition, writing in the Detroit Free Press, the attorney general of the state of Michigan, has this strong commentary entitled "Bush wrong to commute Libby's sentence: Action undermines need for truth."  Here are excerpts:

Ultimately, no one was ever convicted of divulging Plame's name to the press, so it is legitimate to ask whether Libby's perjury matters. The same question could be posed regarding President Clinton's lying under oath about engaging in "sexual relations" with Monica Lewinsky.  Or, more to the point, do these "lies" matter?

I answer most assuredly yes. I spent years as a homicide prosecutor in a big city, Detroit, where each and every case presented the opportunity for perjury by witnesses, and perjury that would matter, perjury that was literally a matter of life and death.

Clinton's supporters and the supporters of Libby share a common class-based myopia: Neither one can see what sort of damage the tolerance of perjury does to the thousands of criminal prosecutions that happen every year.  In essence, the defenders of Clinton and Libby say that if you lie during the course of a white-collar prosecution, it is somehow permissible. 

Where does that leave all the witnesses to violent crime who oftentimes are faced with the very real dilemma that truthful testimony about a criminal offense will subject them to the very real possibility of retribution?  Are we to tell those who witness violent crime, and thus face very real risks of retribution, that they must tell the truth, while those who are witnesses to white collar crimes are free to fudge and prevaricate?

I applauded when Martha Stewart was sentenced to prison for lying under oath about receiving inside stock information.  I felt that justice was done when rapper Lil' Kim was sentenced to almost a year in prison for lying under oath about a shooting.  Is it because I take a perverse pleasure in people going to prison?  No.

Any time our criminal justice system ensures that the truth-telling function of our system is alive and viable, it is a cause for celebration for all citizens.  Telling the truth under oath can be uncomfortable; it can be embarrassing and lead to problems for one's friends and associates, but fudging or protecting one's friends or family does not and cannot commute the necessity for truth-telling.

Simply put, our system of justice depends on truth-telling.  Without that rigor, without that pressure, without that compunction to tell the truth, our system of justice will die. As a nation, we must demand that our public officials honor that pact.  I have no doubts that Libby is basically a good man.  At the same time, a jury of his peers has affirmed his guilt for lying under oath.

If truth is a pillar of our system of justice, then not telling the truth dramatically damages the structural support of that same system of justice.  Lying under oath deserves to be punished. And President Bush was wrong to commute Lewis Libby's sentence.

Adventures in partisan wonderland

My day in DC testifying at the House Judiciary Committee hearing on Bush's commutation of Libby's sentence was quite an experience.  Sadly, only a small part of the VERY lengthy hearing was about sentencing issues, principally because the presence of Joe Wilson as a witness led to much partisan bickering over Valerie Plame and yellow-cake uranium (which sounds like a new Cold Stone Creamery flavor).

After my travels and a chance to catch up on other happenings, I hope to be able to comment with some perspective on what the Bush commutation might come to mean for federal sentencing law.  Today's fun just reinforced that (unsurprisingly) some politicians are more interested in political soundbites than sentencing policies. 

All the witnesses' testimony and a webcast of the hearing can be accessed at this link.  I am eager to hear via comments any and all feedback on my written testimony or on the hearing itself.

Mr. Blogger goes to Washington

This post at TPM Muckraker reports the witness list for Wednesday House Judiciary Committee's hearing on Bush's commutation of Libby's sentence.  As you will see, the eclectic list of five witnesses includes yours truly.  Needless to say, I'll be talking about sentencing issues.

Interesting Libby developments on two fronts

This new AP story update a lot of interesting on-going Libby stories.  Here are highlights:

House Judiciary Chairman John Conyers exhorted President Bush Monday to allow top aides to explain to Congress why Bush commuted I. Lewis "Scooter" Libby's prison sentence. In a letter to Bush on Monday, Conyers said the commutation was troubling and could eliminate Libby's incentive to provide information about the administration's role in leaking the identity of former CIA officer Valerie Plame Wilson....

In another development, White House counsel Fred Fielding told U.S. District Judge Reggie B. Walton that the confusion over Libby's commuted sentence is unnecessary. ... Walton said in court documents that the law "does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration." In a letter to the judge, Fielding said that Libby should simply report to probation officers as if he was recently released from prison.

Under supervised release, Libby would have to submit written reports to probation officers each month and secure full-time employment. He would be prohibited from traveling without permission.

Thanks to How Appealing, you can read the Fielding letter, which is actually addressed to Special Counsel Fitzgerald, at this link.  I will post the Conyers letter when I find it on-line.

UPDATE: Thanks to a helpful fellow blogger, I leanred the Conyers letter is available at this link.

ANOTHER UPDATE:  As Peter noted in the comments, this post at SCOTUSblog has all the filings on the supervised release issue flagged by Judge Walton.  Apparently everyone is saying that Libby is still subject to supervision for two years. 

The inside backstory on the Libby commutation

Michael Isikoff has this fascinating piece in the July 16, 2007 issue of Newsweek entitled "Friends in High Places: Inside Bush's decision to give Scooter Libby a pass."  Here is an excerpt:

Behind the scenes, Bush was intensely focused on the matter, say two White House advisers who were briefed on the deliberations, but who asked not to be identified talking about sensitive matters.  Bush asked Fred Fielding, his discreet White House counsel, to collect information on the case.  Fielding, anticipating the Libby issue would be on his plate, had been gathering material for some time, including key trial transcripts.  Uncharacteristically, Bush himself delved into the details.  He was especially keen to know if there was compelling evidence that might contradict the jury's verdict that Libby had lied to a federal grand jury about when — and from whom — he learned the identity of Valerie Plame Wilson, wife of Iraq War critic Joe Wilson.  But Fielding, one of the advisers tells NEWSWEEK, reluctantly concluded that the jury had reached a reasonable verdict: the evidence was strong that Libby testified falsely about his role in the leak.

The president was conflicted.  He hated the idea that a loyal aide would serve time. Hanging over his deliberations was Cheney, who had said he was "very disappointed" with the jury's verdict.  Cheney did not directly weigh in with Fielding, but nobody involved had any doubt where he stood.  "I'm not sure Bush had a choice," says one of the advisers. "If he didn't act, it would have caused a fracture with the vice president."

The Libertarian response to the Libby commutation

I just saw this interesting press release from the Libertarian Party of Florida providing a notable take on how the President should follow-up his commutation of Lewis Libby.  Here are snippets:

National Libertarian Party chairman William Redpath is challenging President Bush to address the issue of prison time for nonviolent consensual crime offenders after saving Lewis "Scooter" Libby from serving 30 months in prison.  "After freeing Scooter Libby because of what he calls too strong of a sentence, we challenge President Bush to do the same for same for the thousands of Americans currently in prison for other nonviolent victimless offenses," Redpath said upon the announcement of Libby's sentence commutation.  "These Americans are forced to serve a sentence for offenses far less serious than those committed by Libby."...

The Libertarian Party believes jailing nonviolent offenders is a waste of government resources, which could be used in turn for what the party calls "real crime."... The average sentence for a nonviolent offender is over 50 months in prison.

According to a report released by the Center on Juvenile and Criminal Justice, the American prison system held over one million nonviolent offenders by the end of 1998 — the first time ever in American history.  The same report found that prison costs of incarcerating the 1.2 million nonviolent offenders totaled $24 billion dollars for that year.  "If President Bush feels that Libby’s punishment is too severe for the crime, then why does our judicial system still require prison for some nonviolent crimes where no victim exists?" Redpath continued.  "It is a grotesque waste of scant judicial resources."

The platform for the Libertarian Party calls for the immediate reform of the judicial system’s mandatory sentencing policy, to both reduce a skyrocketing prison population and ensure violent offenders are not prematurely released from jail.... "In the supposed 'Land of the Free,' we have the highest prison population in the world," Redpath said.  "The Libertarian Party believes this is a serious problem that demands serious attention."

Some related posts:

• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Collateral litigation consequences of a commutation
• Should Bush's commutation reasons prompt the USSC to amend the federal sentencing guidelines?
• Still more sentencing arguments for defendants from the Bush Administration

More thoughtful commentary on the President as sentencer

The Brian Lehrer Show on WNYC Radio had a nice extended segment today (available here) entitled "Commuting Costs" with Professors Peter Henning and Rachel Barkow talking thoughtfully about the "possible ramifications of the Libby commutation on federal sentencing."  Peter also has more on this topic at this new post at White Collar Crime Prof Blog.

Some related posts:

• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Collateral litigation consequences of a commutation
• What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"
• Still more sentencing arguments for defendants from the Bush Administration

Another Libby tour around the blogosphere

It's not easy keeping up with all the Bush commutation buzz, but this abridged (and "fair and balanced"?) selection of recently Libby talk around the blogosphere makes for interesting reading:

• From Daily Kos, Scooter Libby vs the Republican Sentencing Guidelines

• From the Law Blog, A Law Professor's Inside Take on Bush's Commutation Policy

• From Patterico's Pontifications, Scooter Libby Couldn’t Serve Even One Day?

• From Red State, The Libby Fallout

• From TalkLeft, Libby, the Marc Rich Pardon and Congressional Hearings

• From The Volokh Conspiracy, The Supreme Court and the Libby Case -- A Dialogue

Another good Libby read this morning is also P. S. Ruckman's piece at the National Review entitled "Pardon Me: News for the commutation critics."

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.

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.

Holiday Libby reading thanks to the Huffington Post

The fine folks at The Huffington Post have driven up my hit rates by linking to this long-ago post comparing the now-free-from-prison lucky Libby Lewis to the imprisoned unlucky Victor Rita whose 33-month prison sentence was affirmed last month by the Supreme Court as reasonable.  (One interesting side-note from the Supreme Court's Rita opinions: though President Bush decided Scooter Libby's prison term was "excessive," Justice Scalia described Victor Rita's longer prison term for the same crimes as a "relatively low sentence.")

Returning the favor, let me link to Arianna Huffington's strong piece rightly emphasizing that "Libby commutation -- like the war in Iraq, like the war on drugs, like global warming -- is not an issue that splits along right/left lines."  There is also a lot of other good holiday reading about Libby and other topics at THP.

Collateral litigation consequences of a commutation

Commentators and reporters are now starting to explore the reality that the reasons given by President Bush to justify his commutation have long been made — and will now surely be made with extra force — to urge judges to give defendants below-guideline sentences.  Here is how my colleague Alan Michaels put this point in an e-mail to me:

I do think [the President's statement] will be thrown in the face of every line assistant arguing for a Guidelines sentence in every district court in the country, and I would expect it to carry weight with some judges.  I suspect the President's action is very demoralizing to A.U.S.A.'s around the country for this reason.  These are folks who've backed the President's tough sentencing policy in the face of compelling and heart-rending arguments.  Now the President makes the same argument they've been standing up to! 

In this Slate commentary, Harlan Protass articulates this same point in these terms:

What's stunning about President Bush's commutation of Scooter Libby's sentence, if you're a criminal defense lawyer, ... is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else....

In the weeks and months to come, defense attorneys across the country won't be able to resist tapping away at their keyboards, arguing that their clients' individual circumstances call for sentencing breaks, just like Libby's did. It probably won't work. But the administration's inconsistency is so glaring — and so perfectly illustrates the flaw of harsh and mandatory sentencing regimes — that to point it out to judges will be irresistible.

Developing these same ideas with quotes from a number of informed lawyers are new newspaper articles by Adam Liptak in the New York Times and by Leah Nylan from Medill News.  Here is a choice snippet from the NYT article:

Perhaps inadvertently, Mr. Bush’s decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing generally. “By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that,” said Ellen S. Podgor, who teaches criminal law at Stetson University in DeLand, Fla. “This is opening up a can of worms about federal sentencing.”

By yesterday morning, in fact, Mr. Bush’s arguments for keeping Mr. Libby out of prison had become an unexpected gift to defense lawyers around the country, who scrambled to make use of them in their own cases.... Indeed, Mr. Bush’s decision may have given birth to a new sort of legal document. “I anticipate that we’re going to get a new motion called ‘the Libby motion,’ ” Professor Podgor said. “It will basically say, ‘My client should have got what Libby got, and here’s why.’ ”

As a purely legal matter, of course, Mr. Bush’s statement has no particular force outside of Mr. Libby’s case. But that does not mean judges will necessarily ignore it.

UPDATE:  This Los Angeles Times article includes some reactions from prosecutors that echo Alan Michaels insights:

Several federal prosecutors interviewed by The Times also said they were concerned that Bush's decision would send the wrong message to judges, giving them reason to lighten sentences and undermining the goal of a more uniform justice system.

"Consistency and fidelity to the law are extraordinarily important. We have expended a lot of credibility to get judges to buy off on this," said one senior federal prosecutor who requested anonymity because he was not authorized to speak publicly about the issue.  "I don't know how I am going to advise my people," the prosecutor said. "I cannot tell you how depressed and disgusted people are around here with this decision. It really undercuts law enforcement."

Legal complications following Bush's commutation

I have been wondering about President Bush's statement that Libby would still serve "two years of probation" given that he was actually technically sentenced to two years of "supervised release."  This is important in part because "supervised release" is only a legal possibility under federal law after a term of imprisonment.

Fortunately, Judge Walton is all over these intricate legal issues.  Today he issued a two-page order explaining his concerns about how one can have a "term of supervised release after imprisonment" per 18 USC 3583 now that the President has erased the imposed term of imprisonment.  The order, which can be downloaded below, calls for briefing on this issue from the parties by July 9.

Download libby_3583.pdf

UPDATE:  Lyle Denniston discusses this issue here at SCOTUSblog.

Strong Scooter commentary around the blogosphere

I have not been able to read closely all the comments to prior Libby posts, but I've seen lots of (thoughtful?) debate worth checking out here.  But a bit of quick surfing has also led me to a number of strong discussions of Scooter's fate around the blogosphere.  Besides this great wiki on Scooter the muppet, readers will want to be sure to check out these posts from fellow law-bloggers:

• From Ellen Podgor at White Collar Crime Prof Blog: Commentary on Bush's Commuting of Libby's Sentence

• From Orin Kerr at The Volokh Conspiracy: "Politics" and the Libby Prosecution and Why Didn't Fitzgerald Close Up Shop After Learning That Armitage Was the Leaker?

• From Mark Osler at Osler's Razor: Yes, I do have some thoughts on the commutation of Lewis "Scooter" Libby's sentence!

• From Jeralyn at TalkLeft: Hypocrisy, Thy Name is Bush

UPDATE: Also be sure to check out Dan Filler at Concurring Opinions with Scooter Libby's Disabilities. And also Eric Muller at Is that Legal? with Scooter's Law.

MUCH LATER UPDATE: Thinking lately about an old FSR classic: Pardon Us: Systematic Presidential Pardons by Charles Shanor & Marc Miller: Download 13FedSentgRep139

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.  

If any prison time for Libby is excessive and inappropriate, what about...

some other notable federal sentences like...

• the 33-month federal prison sentence for nearly identical crimes for decorated military veteran Victor Rita (basics here)?
• the 60-month federal prison sentence for minor drug sales for decorated military veteran Patrick Lett (basics here)?
• the 11- and 12-year federal prison sentences for bad mistakes made while protecting our border for Agents Ignacio Ramos and Jose Alonso Compean (basics here)?
• the 55-year federal prison sentence for minor drug sales for Weldon Angelos (basics here)?

or some notable state sentences like...

• the 27-month state prison sentence for providing alcohol at their son's teenage birthday party for two parents (basics here)? 
• the 10-year state prison sentence for consensual oral sex between teenager for Genarlow Wilson (basics here)?
• the 200-year state prison sentence for downloading child porn for Morton Berger (basics here)?

I must note that I have been arguing (mostly informally but sometimes formally) for shorter sentences in all of these cases, so I am a bit biased when I contend that these sentences all seem to me a lot more excessive than having Libby serve at least some time behind bars. 

Critically, my chief goal in this post is not to assert that all the persons should be able to escape all punishment.  Indeed, as President Bush stressed in his commutation statement, Libby still has not (yet) escaped all punishment.  Rather, I wish primarily to urge anyone and everyone defending President Bush's sentencing determination in the Libby case to explain why all these less prominent defendants — most of whom are now locked in a cell while Libby now makes plans for the paid lecture circuit — don't also merit some executive sympathy.

What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"

Distilled to its essence, President Bush's decision to commute the imprisonment portion of Lewis Libby's sentence is a sentencing decision.  The President has not formally excused Libby or changed his status as a convicted felon, and the President's statement indicates "respect" for a federal jury's determination that Libby committed numerous federal crimes.  What the President apparently does not respect is the within-guideline prison term that Judge Reggie Walton concluded was "sufficient, but not greater than necessary" under federal law for Libby's numerous federal crimes.

As I noted here, many federal defendants and their attorneys have argued in many fora that guideline imprisonment levels should not be shown undue respect, but Bush's Justice Department has argued in many fora that the guidelines merit faithful allegience.  It will be interesting to see if, after the President has made clear that he views the guidelines are "excessive" for one of his pals, others with sentencing power begin to give less respect to the guidelines when the fates of less connected defendants are in the balance.

A collection of today's Libby commutation posts:

• BREAKING NEWS: Bush commutes Libby's sentence
• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Early reactions to President Bush's commutation of Libby's prison sentence
• Fitzgerald's reaction to the Bush communtation of Libby's prison sentence

Fitzgerald's reaction to the Bush communtation of Libby's prison sentence

Thanks to TalkLeft, which has lots and lots of Libby talk, you can access here Patrick Fitzgerald's statement on President Bush's commutation of Scooter Libby's sentence.  Here is the heart of Fitz's response to Bush's sentencing judgment:

We comment only on the statement in which the President termed the sentence imposed by the judge as "excessive."  The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.  It is fundamental to the rule of law that all citizens stand before the bar of justice as equals.  That principle guided the judge during both the trial and the sentencing.

Relatedly, Bill Richardson is quoted here asking this question in response to Bush's sentencing decision: "Will the President also commute the sentences of others who obstructed justice and lied to grand juries, or only those who act to protect President Bush and Vice President Cheney?"

Early reactions to President Bush's commutation of Libby's prison sentence

Along with my own initial feelings about the Libby commutation, here are some other notable early reactions to President Bush's notable sentencing "ruling":

From my thoughtful colleague Alan Michaels via e-mail:

The President's statement says that he "respects the jury's verdict," which I take to mean concedes Libby's guilt, but that "the prison sentence given to Mr. Libby is excessive," noting the "harsh punishment" of a fine and probation, given the suffering his family and the impact on his personal and professional reputation. I'm sure you'll be making hay of this for your clients, but I am struck by the remarkable hypocrisy of this statement from an administration seeking to have the force of the Sentencing Guidelines restored.

From John here at PowerLine:

This strikes me as an excellent resolution. To my knowledge, it was first advocated by Paul's friend Bill Otis, a former federal prosecutor, in an op-ed in the Washington Post.  The idea quickly gained support.  I also think the President's commutation of Libby's sentence will go over well with the party's conservative base and will contribute, to some degree, to a restoration of Bush's standing with conservatives.

From the often fiery Big Tent Democrat here at TalkLeft:

In the most blatant disregard for the law in quite a while, President Bush commuted Scooter Libby's sentence.  The man is the worst President in the history of the nation and this is merely confirmation of the contempt he holds for the law, the Constitution, and the American People.

CNN's Political Ticker has a lot more reactions here.

UPDATE:  Orin Kerr and Eugene Volokh both "find Bush's action very troubling because of the obvious special treatment Libby received."  Similarly, as noted in this new post, Patrick Fitzgerald and Bill Richardson are also expressing concerns about unequal justice.

Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?

The AP provides here President Bush's rather lengthy statement in support of his decision to fully commute the imprisonment portion of Lewis Libby's sentence.  Here are just a few choice quotes from Bush's statement that will likely revolt (or perhaps energize?) any defense lawyer who has ever argued that within-guideline sentences are often excessive:

[C]ritics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury....

Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison....

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged.  His wife and young children have also suffered immensely.  He will remain on probation.  The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.

As one lawyer (among many lawyers) who has made these points repeatedly on behalf many defendants who seem much more deserving of sympathy than Mr. Libby — such as decorated veteran Victor Rita who just had his 33 month sentence affirmed by the Supreme Court for crimes seemingly much less serious than Libby's — I suppose I am pleased to see President Bush demonstrate compassionate conservativism for Libby. 

I now hope that he will instruct all members of the Department of Justice to demonstrate similar compassion for other defendants sentenced under the federal sentencing guidelines.  After all, it seems the President views a significant fines and probation and harm to reputation and family as "harsh punishment."  I am sure a number of defendants now appealing punishments that include also a prison term will be glad to have the top executive now defining what sorts of alternatives to imprisonment are sufficient in his view.

BREAKING NEWS: Bush commutes Libby's sentence

I just got this e-mail report from a Wall Street Journal alert:

Bush commuted the sentence of former aide I. Lewis "Scooter" Libby, sparing him from a 2 1/2-year prison term in the CIA leak case. Bush's move came hours after a federal appeals panel ruled Libby couldn't delay his prison term in the case.  Libby was convicted in March of lying to authorities and obstructing the investigation into the 2003 leak of a CIA operative's identity.

WOW!  Comments encouraged below while I think about what I think about this.  Meanwhile, here is coverage from CNN and from the AP. 

Libby denied bail pending appeal by DC Circuit

As detailed in this AP article, "former White House aide I. Lewis "Scooter" Libby cannot delay his 2 1/2-year prison term in the CIA leak case, a federal appeals court unanimously ruled Monday."  Thanks to How Appealing, the DC Circuit's one-paragraph order denying bail pending appeal can be accessed at this link. 

TalkLeft highlights here that, barring a surprise change of course by President Bush, it seem that Scooter better start packing his prison bags.  As the AP article notes, the "U.S. Bureau of Prisons has not yet assigned Libby a prison or given him a date to surrender.  But last week it designated him as federal inmate No. 28301-016."

Some recent related Libby posts:

• Judge Walton explains his Libby bail ruling
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Should President Bush give Libby a respite?
• Everything Libby (and everyone else) needs to know about pardons
• Libby sentencing archive

Everything Libby (and everyone else) needs to know about pardons

P.S. Ruckman, Jr. has created this interesting blog entitled "Pardon for Scooter Libby?", which "features a series of regularly updated, brief essays regarding the possible presidenital pardon of 'Scooter' Libby with an emphasis on history, law and empirical research."  Among the recent interestings posts are:

• The Well-Known Decline in Pardons
• Stink-Bomb Pardons
• Snarky Clemency
• Top Ten Non-Pardons

NPR report noting the Lewis Libby and Victor Rita parallels

Today's broadcast of NPR's "Morning Edition" included this great segment by Nina Totenberg entitled "High Court Sentencing Vote May Bode Ill for Libby."  Here's is the web summary:

I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, is appealing his sentence of 30 months in prison for lying and obstructing an investigation into the leak of a CIA operative's identity. But the situation isn't looking good, after the U.S. Supreme Court voted 8-1 to uphold the sentencing decision of a North Carolina man who was convicted of charges similar to Libby's.

Some recent related posts:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Could the Libby case be impacting the Justices' views and work on Rita?
• The sweet(?) mysteries of Rita... annotated

Judge Walton explains his Libby bail ruling

Though I'm focused on the Rita ruling for the rest of today, others folks might be interested to check out Judge Reggie Walton's new opinion explaining why he denied "Scooter" Libby's request for release pending appeal. Howard Bashman has kinds posted a copy of today's opinion online, which you can access it via this link.

What are the odds Lewis Libby gets bail pending appeal from the DC Circuit?

This AP article details that Lewis Libby today submitted his application for bail pending appeal to the DC Circuit:

In a motion to the U.S. Court of Appeals for the District of Columbia Circuit, Libby argued that the ruling [denying bail] was inappropriate.  He said he has a good chance of having his conviction overturned on appeal and should not have to serve jail time while the court challenge plays out.

"The Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation," his attorneys wrote. "Accordingly, we respectfully ask that the court expedite action on this application."

Any predictions, dear readers, about his chances for getting bail from the DC Circuit?

Commentary on Libby's appeal prospects

At FindLaw, John Dean has this provocative commentary entitled, "Scooter Libby's Appeal: The Focus Shifts To the Highly Political U.S. Court of Appeals for the D.C. Circuit."  Here are its closing sentiments:

If [the DC Circuit] stays Libby's sentence, that will be a grievous mistake. Judge Walton has taken care to scrupulously follow the law, and he has clearly set aside the fact he was appointed by a Republican president. If the panel deciding upon the stay should overrule Judge Walton, that result ought send shudders through the land -- because it will mean the rule of law has become secondary to party loyalty.

So we'll see.  I would be stunned if a GOP-majority panel or, indeed, any panel gave Scooter Libby a pass.

Could the Libby case be impacting the Justices' views and work on Rita?

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence.  Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

Some recent related posts:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Libby sentencing archive
• Rita reasonableness case archive

Should President Bush give Libby a respite?

Last week, as discussed here, former federal prosecutor William Otis advocates clemency for Lewis Libby as an alternative to a full pardon.  Today, in this great National Review piece P. S. Ruckman Jr. throws out the idea of a respite.  Here is part of an adroit little commentary:

The Constitution gives presidents the power to grant "reprieves and pardons." The U.S. Supreme Court has interpreted that language to include pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines, as well as forfeitures, reprieves, respites, and amnesties.  A respite delays the execution of a sentence.  It does not address issues of due process or guilt or innocence.  It merely suspends sentence for a designated period of time. 

George Washington granted the first respites in June, 1795, when he delayed the execution of two men who fought in the Whiskey Rebellion — both of whom were eventually pardoned.  The typical respite lasts between 30 and 90 days.  But many times, initial grants have been followed by a second and third respite, or as many additional respites as were necessary. Woodrow Wilson delayed the six-and-a-half-year prison sentences of two men with nine respites because an "investigation of the facts" had taken "considerable time" — 13 months to be exact.  Wilson also delayed the five-year sentences of W.G. and S.G. Simpson with three respites before pardoning them.... There is, in short, a long history to the use of the respite.

Lewis "Scooter" Libby denied bail pending appeal

to As I had expected, Judge Reggie Walton has denied Lewis "Scooter" Libby bail pending appeal of his conviction and 30-month sentence.  An expedited appear to the DC Circuit will surely follow, and it will be very interesting to see when and how that court will deal with this legal and political hot potato.  This AP report discussed when Libby will have to head to prison:

No date was set for Libby to report to prison but it's expected to be within six to eight weeks. That will be left up to the U.S. Bureau of Prisons, which will also select a facility.  "Unless the Court of Appeals overturns my ruling, he will have to report," Walton said.

This delay in when Libby will have to report creates, of course, a period of time for pardon buzz to reach new heights (classic coverage here).  In addition, a Supreme Court reversal of Victor Rita's within-guideline sentence as unreasonable could perhaps give Libby a new viable appellate issue for the DC Circuit to rely upon as a basis for bail pending appeal.  Interesting times.

Some recent related posts:

• Libby gets within-guideline sentence of 30 months
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• More Libby lessons as pardons and clemency are considered
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Libby sentencing archive

A first extraordinary report on today's Libby hearing

Though a decision on bail pending appeal is not expected until later this afternoon, the AP has this early report on the Lewis "Scooter" Libby sentencing/bail hearing today in Judge Reggie Walton's courtroom.  Here are some quite notable highlights:

A federal judge showed no sign that he would delay I. Lewis "Scooter" Libby's prison term in the CIA leak case Thursday — even as he reported getting threatening letters and phone calls after sentencing the former White House aide. "I received a number of angry, harassing, mean-spirited phone calls and letters," U.S. District Judge Reggie B. Walton said. "Some of those were wishing bad things on me and my family." 

Walton made the remarks as he opened a hearing into whether to delay Libby's 2 1/2-year sentence while the former White House aide appeals.  Walton heard arguments on the request and was scheduled to continue them Thursday afternoon....

The judge also was not persuaded by 12 prominent law professors who filed a legal brief supporting Libby's request for a delay. "The submission was not something I would expect from a first-year in law school," Walton said.  "It was submitted for the sole purpose of throwing their names out there."

Libby's newly formed appellate team — Lawrence S. Robbins and Mark Stancil — are standing by. If Libby loses Thursday, they will ask an appeals court for an emergency order delaying the sentence.  Libby's supporters have called for President Bush wipe away Libby's convictions.

Will Libby get bail pending appeal?

This AP article provides the basic details of the legal battle over whether Lewis "Scooter" Libby will remain free on bail as he appeals his conviction and 30-month sentence.  As the article notes, Judge Walton scheduled a hearing on Libby's request for bail pending appeal for Thursday.  TalkLeft has more here.

Any predictions, dear readers?

UPDATE:  This new AP article has more about Thursday's coming court activities for Libby, and a commentor rightly spotlights that, if Libby is denied bail pending appeal, we should expect this action to spill over quickly to the DC Circuit.  Indeed, this Washington Post piece indicates that Libby's "attorneys have said that if Walton rules against them, they will file an emergency appeal with a panel of the U.S. Court of Appeals for the District of Columbia Circuit."

Fitzgerald not letting up on bail pending appeal

The headline from this AP article says it all: "Prosecutor Wants Libby Imprisoned Now"  Here are some basic details:

Special Prosecutor Patrick Fitzgerald urged a federal judge Tuesday not to delay former White House aide I. Lewis "Scooter" Libby's 2 1/2-year prison sentence in the CIA leak case.  Libby, the former chief of staff to Vice President Dick Cheney, has argued that he has a good chance of winning an appeal and should be allowed to remain free until that challenge has run its course.

U.S. District Judge Reggie B. Walton, who sentenced Libby to prison for lying to authorities and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity, has said he sees no reason to grant Libby's request. He did not set a date for Libby to report to prison, however, and scheduled a hearing on the issue for Thursday.

A delay in Libby's sentence would give President Bush more time to consider pardon requests from Libby's supporters, who say the loyal aide was caught up in a political investigation and does not deserve prison time.  Fitzgerald, in court documents filed Tuesday, said an appeals court is unlikely to overturn Libby's conviction because the evidence against him was so overwhelming.

More telling Libby litigation revelations

TalkLeft here provides more great post-game coverage of the Lewis Libby sentencing, including this order from Judge Reggie Walton (thanks to How Appealing) granting permission for law professors to file amicus brief in support of Libby's motion for bail pending appeal.   A footnote in the order give Judge Walton the great last word on this week's sentencing realities.

UPDATE:  Here is the full text of Walton's footnote, which has justifably garnered much attention:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant.  The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse.  The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

MORE:  Eugene Volokh wonders in this long post "What Exactly Is Judge Walton's Beef Here?".  Though Eugene makes some sound points, his critical commentary fails to appreciate fully the litigation realities that Judge Walton experiences in typical criminal cases.  Unlike in Libby's case, where so many lawyers (and non-lawyers) are working extraordinarily hard to ensure Libby receives the best possible defense, most criminal defendants must make due with the best efforts of a single overworked and underpaid public defender.  Because of these realities, many important criminal justice issues necessarily are "under-litigated."  The point of Judge Walton's footnote, I believe, is to call attention to the reality that most rich and powerful criminal defendants receive so much help and support, while many poor and powerless defendants barely receive constitutionally adequate assistance. 

Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable

As discussed here, former federal prosecutor Rudy Giuliani has already suggested that Lewis "Scooter" Libby's within-guideline sentence is substantively unreasonable.  Now I see from this Washington Post op-ed that former federal prosecutor William Otis, who advocates clemency for Libby, views Libby's within-guideline sentence as "excessive" and "unusually harsh" and "unnecessary."  Notably, Otis does not mention in his op-ed that Libby received a sentence at the bottom of the applicable guideline range.

Thankfully, Eric Muller, in this must-read post, effectively highlights the remarkable hypocrisy of these sentencing criticisms coming from Otis, who was not long ago a spokesman for the Justice Department decrying judicial decisions to sentence below the guidelines.  Here is one of the points Otis made in testimony to Congress complaining about sentences below the guidelines: "Even more than others, persons convicted of criminal behavior need — for their own good and ours — to turn away from the culture of grievance-building and excuse-making and join the culture of personal responsibility."

In addition, given his experience with guideline sentencing realities, Otis should know better than to call Libby's sentence "unusually harsh."  As I have highlighted in posts here and here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for far less serious instances of perjury and obstruction.  And yet, I do not believe that Otis has spoken out in support of Rita's appeal of his sentence to the Supreme Court.

I hope that the Justices considering Rita's appeal are taking note of how these "tough on crime" former federal prosecutors now are so ready to spotlight that the guidelines can sometimes produce unreasonably harsh sentence ranges.

Some recent related posts:

• Libby gets within-guideline sentence of 30 months
• Dissecting the key guideline calculation in the Libby sentencing
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable

More Libby lessons as pardons and clemency are considered

There are so many insights and lessons one can draw from the sentencing of Lewis Libby.  Prior posts here and here focused on some guideline lessons, and this fine new Los Angeles Times piece focuses on lessons about the sentencing judge.  And, of course, the focal point for future insights and lessons will center on the Presideny's pardon and clemency power.

This New York Times piece provides a good overview of some pardon issues in the Libby case, and Margaret Love says so much in this short LA Times op-ed entitled "Begging Bush's pardon."  Here is the start of Love's very strong commentary:

As speculation grows about whether President Bush will pardon I. Lewis "Scooter" Libby, or at least commute his prison sentence, it's important to remember the hundreds of ordinary people who have been patiently standing in line, some for many years, waiting for presidential forgiveness.  In a sense, it is these largely anonymous applicants for executive clemency (of which pardon and commutation are subsets) who hold the key to the president's ability to help the well-connected Mr. Libby.

This is not so much a matter of fairness as it is of political common sense.  Many of those with pending applications for clemency were convicted long ago of garden-variety crimes and have fully served their time; many others are still serving lengthy mandatory prison terms from which there is no hope of parole (parole having been eliminated from federal sentencing).

One such applicant is my client, Willie Mays Aikens, whose addiction to crack cocaine ruined a brilliant major league baseball career and who is now in the 13th year of a 20-year prison term for selling drugs to an undercover policewoman — an extraordinarily harsh sentence for a relatively minor, nonviolent drug offense.  There are countless others in similar positions.  If the president is unwilling to look favorably on deserving applicants for clemency like Aikens, how can he justify helping Libby? ...

Bush has been more sparing in his exercise of the constitutional pardon power than any president in the last 100 years, including his father. He has pardoned only 113 people in more than six years in office and denied more than 1,000 pardon applications.  He has granted only three of more than 5,000 requests for sentence reduction from federal prisoners.  Many hundreds of applications remain to be acted on....

For a president who has been willing to stretch his other constitutional powers to the limit and beyond, Bush has proved strangely hesitant to exercise the one power that is unquestionably his alone.... The federal pardon power has a proud history, yet in recent years it has been trivialized and allowed to atrophy.  The Libby case presents Bush with an opportunity to change that.

If he begins now to exercise his pardon power with more intention and greater liberality, with more sympathy for human error and less aversion to controversy, there is at least a chance that the public will regard with equanimity any relief he ultimately chooses to grant to Scooter Libby.

Some related posts:

• A thoughtful take on the Libby pardon politics
• Everyone's talking about pardons
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Sentencing and pardon politics in the Libby case
• Libby sentencing archive

Dissecting the key guideline calculation in the Libby sentencing

Though talk is already turning to pardons in the wake of Lewis Libby's sentencing, I am very pleased to see that Edward Lazarus in this very effective FindLaw column is looking more closely at the key guideline determination that led Judge Walton to give Libby a sentencing of 30 months.  Here are snippets from the column:

Amid the[] politically-driven reactions, it is worth pausing to consider the Sentencing Guidelines calculation that led to Libby's sentence.  When the issue is viewed through this admittedly narrow and incomplete prism, I would argue that Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate....

Under the Guidelines, the offense severity for someone convicted of perjury or obstruction is the greater of either the severity rating for generic perjury/obstruction, or the severity rating of the offense being lied about or covered up. In essence, the Guidelines treat someone guilty of perjury or obstruction as an accessory after the fact to the offense underlying the lies and obstruction.  Some thoughtful commentators have started complaining about the fairness of this approach. But as a general matter, it makes very good sense. Not all lies are created equal. The reason for the lie ought to matter....

Moving from the general to the specific, Libby's case presents a close question for whether cross-referencing the underlying offense being investigated, for purposes of Guidelines calculations, makes sense. Here, Libby himself was not charged with violating the IIPA or the Espionage Act and, perhaps even more important, neither was anyone else.  A reasonable argument can be made that cross-referencing doesn't make much sense when it may well be the case that no one actually committed the crimes being investigated.

Is it really fair, after all, to up Libby's punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)?

Some related posts:

• Libby gets within-guideline sentence of 30 months
• Noticing the government's sentencing trick in the Libby case
• Government pushing for around 3 years for Libby
• The best sentencing defense money can buy...?
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Libby sentencing archive

Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable

As regular readers know, despite thousands of post-Booker appeals, the federal circuit courts are yet to find a single within-guideline sentence to be substantively unreasonable.  However, thanks to a question during the Republican debate asking the candidates about pardoning Scooter Libby, it now appears that former federal prosecutor Rudy Giuliani has concluded that Lewis Libby's within-guideline sentence is substantively unreasonable.  Here is exactly what Giuliani said during the debate:

I think the sentence was way out of line.  I mean, the sentence was grossly excessive in a situation in which at the beginning, the prosecutor knew who the leak was and he knew a crime wasn't committed. I recommended over a thousand pardons to President Reagan when I was associate attorney general. I would see if it fit the criteria for pardon. I'd wait for the appeal. I think what the judge did today argues more in favor of a pardon because this is excessive punishment.

Though Giuliani does not use the term "unreasonable," that seems to be the obvious legal implication from Giuliani's description of Libby's within-guideline sentence as "way out of line" and "grossly excessive."  I wonder if Giuliani would use the same description for Victor Rita's 33-month sentence for less serious instances of perjury and obstruction.  Of course, the Fourth Circuit found Rita's sentence to be reasonable; under current DC Circuit law, Libby's 30-month sentence is already presumptively reasonable.

For additional great guideline lessons from the Libby sentencing, be sure to check out Ellen Podgor's thoughtful commentary here at the White Collar Crime Prof Blog.

Some blogosphere reaction to to the Libby sentencing

TalkLeft continues to have the most thorough and thoughtful discussion of post-sentencing Libby issues, though I have also seen posts and comments of interest at:

• Appellate Law & Practice
• White Collar Crime Prof Blog
• WSJ Law Blog

AL&P's post notes some of the most notable “Libby Letters” to Judge Walton and sensibly speculates: "Did they do any good?  Probably not."

Now we get to debate bail pending appeal (and a pardon) for Libby

This new AP article about the Lewis Libby sentencing indicates that Judge Walton has decided to take extra time and briefing on bail pending appeal for Libby:

Walton did not set a date for Libby to report to prison.  Though he saw no reason to let Libby remain free pending appeal, Walton said he would accept written arguments on the issue and rule later.

Jeralyn here at TalkLeft has this helpful report about what is to happen now:

The Probation Department has to recalculate the guidelines grouping the obstruction, perjury and false statement charge. The judge has stayed imposition of the sentence. No decision on bond pending appeal today or voluntary surrender today, but Libby goes home.  Briefs will be filed on the appeal bond issue, it will be heard a week from Thursday at 1:30.

So, Libby will surely remain free at least until Thursday, June 14.  Even if Judge Walton denies bail pending appeal, Libby likely won't be expected to surrender until the end of June (during which time Libby's team might appeal to the DC Circuit the denial of bail pending appeal). 

This timeline is significant not only because it provides a lot of time for the inevitable pardon talk to get going, but also because the Supreme Court will likely decide the Rita case in the next few weeks.  If Victor Rita's within-guideline sentence is reversed as unreasonable, I think Libby's team could have some strong new arguments on a variety of sentencing issues (which, in turn, could further support his arguments for bail pending appeal).

Libby gets within-guideline sentence of 30 months

As detailed in this early report from the AP, "Lewis 'Scooter' Libby, former chief of staff to Vice President Dick Cheney, was sentenced Tuesday to 30 months in prison for lying to investigators about what he told reporters about CIA operative Valerie Plame.... He also was fined $250,000."

I believe Judge Walton accepted the government's proposed sentencing enhancement and then sentenced at the bottom of the applicable range, but I am not sure.  More details to follow, with early comments from readers highly encouraged.  (For now, let me just say that I hope that Libby's sentence is the basis for a question at tonight's Republican candidates debate.)

UPDATE:  TalkLeft has lots of good coverage, including this post with links to all the letters sent to Judge Walton.  I'd be grateful for reader help to identify which letters seem particularly notable.

Also, let me not forget to note that this sentence is still three months shorter than the sentence given to Victor Rita for very similar — though, in my view, less serious — crimes (as discussed here and here). 

It is fun to speculate whether this sentence for Libby could impact some of the Justices' views (or dicta) as the wrap up a decision in Rita.  I also think this reality highlights the mistake made by the defense team to not try to put off sentencing until after the Justices rule in Rita.

Issues to watch in Lewis Libby's sentencing

As detailed in this AP article, this morning is the scheduled federal sentencing of Lewis "Scooter" Libby in DC District Court.  The article ponders the interesting question of whether Libby himself will speak as part of the sentencing proceeding.  Here are some other issues I'll be will be watching:

1.  Will Judge Walton accept the PSR's guideline recommendation (setting the advisory sentencing range at 15-21 months' imprisonment) or will he apply the enhancements urged by the government (which bump the range up to 30-37 months)?  This new Time article unpacks this aspect of the case.

2.  Will Judge Walton grant a "traditional departure" on any of the grounds urged by the defense?  TalkLeft covers some of these issues here.

3.  Will Judge Walton follow the guidelines (with or without a traditional departure) or will he impose a non-guideline sentence?

4.  If judge Judge Walton gives some term of confinement to Libby, will he grant bail pending appeal?

Of course, these questions all serve a prelude to the pardon debate that will surely heat up in the days ahead, especially if Libby gets a prison sentence and bail pending appeal is not granted.

Some recent related Libby sentencing posts:

• Exactly what sentence should/will Scooter Libby get?
• Government pushing for around 3 years for Libby
• The best sentencing defense money can buy...?
• An effective primer before the Libby sentencing
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Libby sentencing archive

An effective primer before the Libby sentencing

In this piece at TomDispatch.com, former federal prosecutor Elizabeth de la Vega, who has been writing about the Valerie Plame case since 2005, provides a lesson in "Sentencing for Dummies" in anticipation for tomorrow's sentencing of Lewis "Scooter" Libby.  Here are some snippets from an interesting piece:

Given that, as the government points out, Libby used his position in the White House to commit the crime for which he was convicted; that he has not used his law license for many years and would likely never have to again; that the families of all defendants' suffer and that, unlike most defendants, Libby has a massive legal defense trust fund; that he committed his crime not once, but four times over a period of many months; and that doesn't think he did anything wrong, I suspect the judge will not be giving Libby probation....

Because of this almost universal disconnect over the case, I would not be surprised to find that, even if Judge Walton imposes a sentence of 37 months -- which I believe would be entirely warranted -- many people, particularly those who have most ardently supported the effort, will find the event anticlimactic and vaguely dispiriting.

I make this prediction in part because such is the nature of sentencing proceedings. Having participated in hundreds of sentencings, I've found nearly every one to be dispiriting at some level.  Strangely -- especially given that I was there as a prosecutor -- I often felt sorry for the defendant and, even more often, sympathized with the defendant's family and friends.  At the same time, I was always heartbroken by the effects of the crime on the victims and knew that the pain they had been caused was not going to end simply because the defendant was heading off to prison. Sentencings have an aura of finality -- and simplicity -- that is invariably more illusory than real.

Some recent related Libby sentencing posts:

• Exactly what sentence should/will Scooter Libby get?
• Government pushing for around 3 years for Libby
• The best sentencing defense money can buy...?
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Libby sentencing archive

The best sentencing defense money can buy...?

I have now had the opportunity to read closely the sentencing filings of Lewis "Scooter" Libby's defense team (which can be accessed here and here), and I was generally impressed.  Though more could and probably should have been made of certain 3353(a) sentencing factors (see below), the filings built a solid case for sentencing Libby below the guideline range of 15-21 months recommended by the probation office's presentence report.  (Recall that, as discussed here, Fitzgerald's prosecution team runs the guideline numbers differently, arriving at a guideline sentencing range of 30-37 months.)

Still, were I in Scooter's shoes, I would be wondering about a few matters as my June 5 sentencing swiftly approaches:

1.  Why didn't the defense seek to follow Judge Posner's recent sentencing advice by providing "credible empirical evidence" for a probation sentence in order to avoid being at "the mercy of the instincts and intuitions of the sentencing judge"?

2.  Why did AG Gonzales decide to again advocate a mandatory minimum guideline system just days before one of the  highest-profile post-Booker sentencings in many months?

3.  In light of the significant parallels (discussed here and here) between Libby's situation and the case against Victor Rita, whose sentence is still pending before the Supreme Court, wouldn't the defense team have been wise to seek a delay in the sentencing in the hope that SCOTUS might declare a within-guideline sentence for Rita unreasonable?

Some recent related Libby sentencing posts:

• Exactly what sentence should/will Scooter Libby get?
• Government pushing for around 3 years for Libby
• A thoughtful take on the Libby pardon politics
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Libby sentencing archive

A thoughtful take on the Libby pardon politics

John Dean has this thoughtful commentary at FindLaw entitled "The Bush Administration's Dilemma Regarding a Possible Libby Pardon - And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution."  Here is how it begins:

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent.  I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.

Needless to say, I have no crystal ball.  But it is plain that the White House must be bracing itself for Libby's being sent to prison.  Moreover, it appears that high-powered friends of Libby and Cheney have figured out the White House's dilemma, so they are trying to help keep Scooter out of prison in a manner that will not have criminal consequences for anyone involved.

No one has been more active in this undertaking on Libby's behalf than former Tennessee Senator Fred D. Thompson, who has strong Presidential aspirations. Yet, to my surprise, Thompson is either being blatantly dishonest, or he is remarkably uninformed about his efforts.  Unfortunately for Thompson, neither state of mind ought to commend itself to Republicans clamoring for a conservative with stature for the GOP nomination in 2008.

Some related Libby pardon posts:

• Everyone's talking about pardons
• Will Libby get bail pending appeal from the courts? Can he get it from the President?
• Sentencing and pardon politics in the Libby case
• Libby sentencing archive

Exactly what sentence should/will Scooter Libby get?

Howard Bashman helpfully collects here major press coverage of the sentencing filings by the defense team for Lewis Libby's upcoming sentencing.  In addition, Jeralyn TalkLeft has this thoughtful post with a review and analysis of the defense filings (which can be accessed here and here).  Here's Jeralyn's take on what's likely to be the outcome of Libby's June 5 sentencing:

I'm wondering if Judge Walton will have the wherewithal to sentence Libby to probation given the high profile nature of the case.  But, in an ordinary case, given a pre-sentence report as favorably described as this one, I think that would be the outcome.  Because this case is being watched by so many, I suspect Walton will decide Libby needs some time.

My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention.

In answering the question post in the title of this post, I keep returning to the fact that Victor Rita, whose sentenced in now being reviewed by the Supreme Court, was sentenced to 33 months for similar (but less serious) crimes as Libby.  I think, for a variety of reasons, Libby should/will get some prison time, and my money would be on him getting something between 1-2 years.

Please use the comments, dear readers, to argue about what you believe Libby should or will get.  (For all we know, Judge Walton and/or his clerks read this blog, so the comments might provide a setting for filing a bloggy amicus brief.)

Libby sentencing letters to be released after sentencing

As detailed in this AP article, a "federal judge said today he will release more than 150 letters he received regarding next week's sentencing of former White House aide I. Lewis 'Scooter' Libby."  Here are more details:

Libby, who was convicted in March of perjury and obstruction in the CIA leak case, had asked that the letters not be released.  Attorneys for several news organizations argued that the law required the letters be made public.  U.S. District Judge Reggie B. Walton agreed, citing a need for transparency.

"The court has received more than 150 sentencing letters in this case, some urging leniency for the defendant and some expressing opprobrium at the defendant's actions and calling for the imposition of a substantial prison sentence," Walton wrote.  The letters will be released after Libby is sentenced June 5, Walton said.  Addresses and other personal information will not be released.

Noticing the government's sentencing trick in the Libby case

Byron York, writing at the National Review Online, has this new commentary on the upcoming Libby sentencing entitled "Fitzgerald: O.K., Libby Wasn't Convicted of Leaking — But Punish Him As If He Had Been."  York notices the little trick of punishing for unconvicted conduct that the government, aided by provisions of the federal sentencing guidelines, uses all the time in federal sentencing.  (I wonder if York realizes that, under current federal sentencing rules, Fitz could make this argument even if Libby had been acquitted of leaking.)

Some recent related posts:

• Government pushing for around 3 years for Libby
• Libby sentencing buzz starting
• Comparing Lewis Libby and Victor Rita
• Sentencing and pardon politics in the Libby case
• Will VP Cheney help Libby at sentencing?