S
Sid9
Guest
July 4, 2007
Commuting Prison Term Is Implicit Critique of Sentencing Standards
By ADAM LIPTAK
In commuting I. Lewis Libby Jr.'s 30-month prison sentence on Monday,
President Bush drew on the same array of arguments about the federal
sentencing system often made by defense lawyers - and routinely and
strenuously opposed by his own Justice Department.
Critics of the federal sentencing system have a long list of complaints.
Sentences, they say, are too harsh. Judges are allowed to take account of
facts not proven to the jury. The defendant's positive contributions are
ignored, as is the collateral damage that imprisonment causes the families
involved.
On Monday, President Bush made use of every element of that critique in a
detailed statement setting out his reasons for commuting Mr. Libby's
sentence.
That left experts in sentencing law scratching their heads.
"The Bush administration, in some sense following the leads of three
previous administrations, has repeatedly supported a federal sentencing
system that is distinctly disrespectful of the very arguments that Bush has
put forward in cutting Libby a break," said Douglas A. Berman, a law
professor at Ohio State who runs the blog "Sentencing Law and Policy."
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.
"The president of the United States has come in on his own and said, '30
months is not reasonable in this case,' " said Susan James, an Alabama
lawyer representing Don E. Siegelman, the state's former governor, who is
appealing a sentence he received last week of 88 months for obstruction of
justice and other charges.
"It's far more important than if he'd just pardoned Libby," Ms. James said,
as forgiving a given offense as an act of executive grace would have had
only political repercussions. "What you're going to see is people like me
quoting President Bush in every pleading that comes across every federal
judge's desk."
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.
No one disputes that Mr. Bush has the authority under the Constitution to
issue pardons and commutations for federal crimes. But experts in the area,
pointing to earlier political scandals in the Reagan, Truman and Grant
administrations, said Mr. Bush had acted with unusual speed.
"What distinguishes Scooter Libby from the acts of clemency in the other
three episodes," said P. S. Ruckman Jr., a political science professor who
studies pardons at Rock Valley College in Rockford, Ill., referring to Mr.
Libby by his nickname, "is that in those episodes they generally served
their time and some other president pardoned them."
Mr. Bush repeated yesterday that he had found Mr. Libby's punishment to be
too severe. But experts in federal sentencing law said a sentence of 30
months for lying and obstruction was perfectly consistent with the tough
sentences routinely meted out by the federal system.
"One what legal basis could he have reached that result?" asked Frank O.
Bowman III, an authority on federal sentencing who teaches law at the
University of Missouri-Columbia, said of the commutation. "There is no legal
basis."
But nor is there a reason to think that the Justice Department has changed
its thinking about the sentencing system generally. Indeed, Attorney General
Alberto R. Gonzales last month said the Justice Department would push for
legislation making federal sentences tougher and less flexible.
Similarly, in a case decided two weeks ago by the United States Supreme
Court, the Justice Department persuaded the Supreme Court to affirm the
33-month sentence of a defendant whose case closely resembled that against
Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of
perjury, making false statements to federal agents and obstruction of
justice.
Mr. Rita has performed extensive government service, just as Mr. Libby has.
Mr. Rita served in the armed forces for more than 25 years, receiving 35
commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal
history for purposes of the federal sentencing guidelines.
The judges who sentenced the two men increased their sentences by taking
account of the crimes about which they lied. Mr. Rita's perjury concerned
what the court called "a possible violation of a machine-gun registration
law," while Mr. Libby's of a possible violation of a federal law making it a
crime to disclose the identities of undercover intelligence agents in some
circumstances.
When Mr. Rita argued that his 33-month sentence had failed adequately to
consider his history and circumstances, the Justice Department strenuously
disagreed.
Senator Joseph R. Biden Jr., Democrat of Delaware, posted a copy of the
government's brief in the Rita case on his blog yesterday and asked: "Why is
the president flip-flopping on these criminal justice decisions?"
The Justice Department also took a hard line last year in the case of Jamie
Olis, a midlevel executive at the energy company Dynegy convicted of
accounting fraud. The department argued that Mr. Olis deserved 292 months,
or more than 24 years. He was sentenced to six years.
Sentencing experts said that Mr. Libby's sentence was both tough and in line
with general trends.
"It was a pretty harsh sentence," Professor Berman said, "because I tend to
view any term of imprisonment for nonviolent first offenses as harsh. But it
certainly wasn't out of the normal array of cases I see every day."
Commuting Prison Term Is Implicit Critique of Sentencing Standards
By ADAM LIPTAK
In commuting I. Lewis Libby Jr.'s 30-month prison sentence on Monday,
President Bush drew on the same array of arguments about the federal
sentencing system often made by defense lawyers - and routinely and
strenuously opposed by his own Justice Department.
Critics of the federal sentencing system have a long list of complaints.
Sentences, they say, are too harsh. Judges are allowed to take account of
facts not proven to the jury. The defendant's positive contributions are
ignored, as is the collateral damage that imprisonment causes the families
involved.
On Monday, President Bush made use of every element of that critique in a
detailed statement setting out his reasons for commuting Mr. Libby's
sentence.
That left experts in sentencing law scratching their heads.
"The Bush administration, in some sense following the leads of three
previous administrations, has repeatedly supported a federal sentencing
system that is distinctly disrespectful of the very arguments that Bush has
put forward in cutting Libby a break," said Douglas A. Berman, a law
professor at Ohio State who runs the blog "Sentencing Law and Policy."
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.
"The president of the United States has come in on his own and said, '30
months is not reasonable in this case,' " said Susan James, an Alabama
lawyer representing Don E. Siegelman, the state's former governor, who is
appealing a sentence he received last week of 88 months for obstruction of
justice and other charges.
"It's far more important than if he'd just pardoned Libby," Ms. James said,
as forgiving a given offense as an act of executive grace would have had
only political repercussions. "What you're going to see is people like me
quoting President Bush in every pleading that comes across every federal
judge's desk."
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.
No one disputes that Mr. Bush has the authority under the Constitution to
issue pardons and commutations for federal crimes. But experts in the area,
pointing to earlier political scandals in the Reagan, Truman and Grant
administrations, said Mr. Bush had acted with unusual speed.
"What distinguishes Scooter Libby from the acts of clemency in the other
three episodes," said P. S. Ruckman Jr., a political science professor who
studies pardons at Rock Valley College in Rockford, Ill., referring to Mr.
Libby by his nickname, "is that in those episodes they generally served
their time and some other president pardoned them."
Mr. Bush repeated yesterday that he had found Mr. Libby's punishment to be
too severe. But experts in federal sentencing law said a sentence of 30
months for lying and obstruction was perfectly consistent with the tough
sentences routinely meted out by the federal system.
"One what legal basis could he have reached that result?" asked Frank O.
Bowman III, an authority on federal sentencing who teaches law at the
University of Missouri-Columbia, said of the commutation. "There is no legal
basis."
But nor is there a reason to think that the Justice Department has changed
its thinking about the sentencing system generally. Indeed, Attorney General
Alberto R. Gonzales last month said the Justice Department would push for
legislation making federal sentences tougher and less flexible.
Similarly, in a case decided two weeks ago by the United States Supreme
Court, the Justice Department persuaded the Supreme Court to affirm the
33-month sentence of a defendant whose case closely resembled that against
Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of
perjury, making false statements to federal agents and obstruction of
justice.
Mr. Rita has performed extensive government service, just as Mr. Libby has.
Mr. Rita served in the armed forces for more than 25 years, receiving 35
commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal
history for purposes of the federal sentencing guidelines.
The judges who sentenced the two men increased their sentences by taking
account of the crimes about which they lied. Mr. Rita's perjury concerned
what the court called "a possible violation of a machine-gun registration
law," while Mr. Libby's of a possible violation of a federal law making it a
crime to disclose the identities of undercover intelligence agents in some
circumstances.
When Mr. Rita argued that his 33-month sentence had failed adequately to
consider his history and circumstances, the Justice Department strenuously
disagreed.
Senator Joseph R. Biden Jr., Democrat of Delaware, posted a copy of the
government's brief in the Rita case on his blog yesterday and asked: "Why is
the president flip-flopping on these criminal justice decisions?"
The Justice Department also took a hard line last year in the case of Jamie
Olis, a midlevel executive at the energy company Dynegy convicted of
accounting fraud. The department argued that Mr. Olis deserved 292 months,
or more than 24 years. He was sentenced to six years.
Sentencing experts said that Mr. Libby's sentence was both tough and in line
with general trends.
"It was a pretty harsh sentence," Professor Berman said, "because I tend to
view any term of imprisonment for nonviolent first offenses as harsh. But it
certainly wasn't out of the normal array of cases I see every day."
