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The Quality of Mercy Is StrainedBush commutes Libby's sentence, while his lawyers come down hard on everyone else.

By Harlan J. Protass
Posted Tuesday, July 3, 2007, at 5:09 PM ET
Lewis "Scooter" Libby. Click image to expand.

What's stunning about President Bush's commutation of Scooter Libby's sentence, if you're a criminal defense lawyer, isn't that it was politically motivated. Or that it tramples on principles of equal justice. Or even that it is the latest in a long string of Bush administration assaults on the rule of law.

Rather, what's astonishing 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.

The specific bases Bush gave for the commutation are that the 30-month prison sentence was too harsh for Libby's crime, that he was a first-time offender who had a long history of public service, that his conviction had already damaged his career and reputation and caused his wife and young children to suffer, and that sentencing Judge Reggie Walton rejected the advice of the probation office, which recommended that he consider "factors that could have led to a sentence of home confinement or probation." Defense attorneys would generally agree that these are all good reasons for reducing Libby's sentence—particularly in light of the nature of his offense. They would also agree that 30 months was too long in the first place to serve for the nonviolent crime of making false statements.

The Bush administration, however, has consistently maintained that at sentencing, judges should be precluded from thinking about precisely the sort of individual circumstances the president raised in lending a hand to Libby. Last month, Attorney General Alberto Gonzales proposed legislation that would prevent judges from relying on anything outside the federal sentencing guidelines as the basis for a sentence more lenient than the range that the guidelines provide for. Only the rarest of exceptions to this rule would be permitted.

That proposed legislation would effectively reverse the 2005 Supreme Court decision in United States v. Booker, which authorized sentencing judges to consider factors like a defendant's life story and the nature and circumstances of his or her offense. Gonzales' bill would also make the federal guidelines, which the Supreme Court found unconstitutional, essentially mandatory again—again leaving judges less leeway for showing mercy.

Consider, in that light and in comparison to Libby, the case of United States v. Rita, which the Supreme Court decided two weeks ago. As Douglas Berman describes at Sentencing Law and Policy, Victor Rita also got "caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that"—like Libby—"he lied while giving grand jury testimony." Rita was convicted. At sentencing, he argued that he should receive a sentence below the range in the federal guidelines because he was elderly and sick, had served for 24 years as a Marine, including tours in Vietnam and the first Gulf War, and was vulnerable to abuse in prison because he'd worked in criminal justice on behalf of the government.

After receiving a within-the-guidelines sentence of 33 months, Rita appealed on the ground that the sentence was unreasonable given the nature of his offense and his personal circumstances. The Bush administration opposed Rita's appeal. The government argued that 33 months was reasonable simply because it complied with the federal guidelines. And the Supreme Court agreed, affirming Rita's sentence. Berman lists other cases in which Bush prosecutors demanded and got harsh sentences for minor crimes committed by sometimes-sympathetic defendants. The point is that this administration has steadfastly asserted its belief in uniform sentencing. Nationwide, the Department of Justice requires prosecutors to advocate for sentences that adhere to the guidelines because, the administration argues, this is the best way to narrow sentencing disparities among defendants who commit similar crimes.

Pardons and sentence commutations are by definition tickets that are good for only one ride, special treatment for special defendants. And yet, one can't help asking, what of all those fears about disparity? 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.

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Harlan Protass is a criminal defense lawyer in New York and an adjunct professor at the Benjamin N. Cardozo School of law, where he teaches about sentencing.
Photograph of Scooter Libby by Mark Wilson/Getty Images.
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Remarks from the Fray:

There isn't anything inconsistent with Bush taking into account factors in granting a pardon when he opposes the use of those factors in sentencing.

The typical conservative opinion on sentencing is the number of factors should be narrow and applied evenly to all. The entire purpose of the pardon power is for the President to step in on the extraordinary occasions when those unique factors should be taken into account.

Judges should be strictly limited in their discretion because they are not answerable democratically for using factors not specifically called for, whereas the executive branch is and so can step in when called for. The executive can be called to account. Thus, the pardon is entirely consistent with conservative judicial philosophy.

Given how harshly most Americans want their prisoners to be treated and the ridiculously long prison sentences imposed, I don't think the situation is likely to change. Bush is the sort of man who can happily execute an underage prisoner or one with the IQ of a shoe, but he doesn't want his kind to suffer. He was never punished for any of his transgressions, from drug use, to drunk driving, to not fulfilling his military obligations. He clearly believes he is of that class, while others should be drawn and quartered for stealing a loaf of bread.

But then, we all knew this when we elected him and shouldn't be the least surprised he is what he is.

--MacAdvisor

(To reply, click here.)

I understand that the president's prerogative to commute a sentence, offer clemency or a pardon is as the article describes "a one ticket ride."

But why should any member of the government be allowed to abdicate the government's responsibility to treat all citizens equally? If Libby, why not Rita?

Pardons, clemencies and commutations that are granted to one person should apply to all people in similar situations.

--destor

(To reply, click here.)

It has long been the case, and the Libby debacle is just the latest example, that there are two justice systems: one for ordinary folks like you and me, and one for the politically connected. Actually, there are several: one for the rich and one for the poor; one for whites, and one for blacks; and so forth.

The mitigating factor for Libby was, Bush's lying (he does that a lot, in case you have not noticed) statement notwithstanding, his close connection to Cheney. After all, in lying, he was only protecting Cheney. And why should he go to jail for that?

Rita, while I'm sure a fine chap, just doesn't have the pull to call forth hundreds of letters in his support from the great and the good. Nor has Bush ever heard of him. Why, then, should his sentence be commuted?

Protass's error is one of naivete. He thinks that there is or should be one justice system for all. Foolish man.

--lloyd667

(To reply, click here.)

Arguments of convenience and situational ethics are so pervasive in politics in general and this administration in particular that it won't be hard to point out half a dozen different contradictions with philosophies professed at other times.

What stinks to the highest heaven (which is saying a lot in this foul odor fest) is the violation of a universally accepted principle -- avoidance of conflict of interest. Compared to this, a judge writing off his wife's parking ticket would look like a modern day Solomon. Libby was widely perceived as a fall guy who took a blow to cover his bosses' ass, and his conviction a symbolic slap on the administration's modus operandi. Bush didn't pardon Libby, he pardoned himself in effect.

--Gregor_Samsa

(To reply, click here.)

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