Adam Liptak has an interesting piece in today’s NYT about the Bush administration and federal sentencing guidelines and the way in which the Libby commutation contradicts the administration’s behavior in regards to those guidelines: Commuting Prison Term Is Implicit Critique of Sentencing Standards:
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.”
Indeed, if one looks at President Bush’s statement in regards to the commutation, one sees the kinds of arguments that the sentencing guidelines eschew:
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 thirty 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.
Now, it is true that the President is not bound by federal sentencing guidelines and that his power, constitutionally speaking, in this realm is absolute. Still, there is something quite problematic about using standards of judgment here that are not allowed to be used in federal court by guidelines supported by Bush’s own Justice Department. Indeed, President Bush, going back to his days as Governor of Texas has been well-known for his reticence to use the pardon (or commutation) pen. For him to use it in a case wherein he has some personal stake (as Libby’s actions directly sprang from his role in the Bush administration) does demonstrate yet again the tendency towards cronyism that has been a hallmark of this administration. As Andrew Sullivan rightly notes:
The bottom line for Americans is this: George Bush’s friends do not go to jail. Your friends do.
In a system of government predicated on the rule of law, not of men that is a highly problematic fact.
Back to the specific issue of sentencing guidelines, Bean at LGM has an interesting post. Orin Kerr at the Volokh Conspiracy also has an interesting post, wherein he argues that the issue of sentencing guidelines is irrelevant insofar as the courts and the President are in separate branches and subject to different logics and behaviors. I agree with the basic notion, i.e., that one should not expect Presidents to, per se, adhere to those guidelines. However, I think Kerr’s argument still misses the point that there is a substantial amount of hypocrisy to be associated with this move by Bush, given his long-standing support of stringent sentencing guidelines. This is especially problematic again, when we recognize that we are dealing here with a personal acquaintance of the President and a former member of his administration. The President is able to see and understand Libby’s service and the effects on his family of the original sentence, and therefore is able to be compassionate, but in a generic sense eschews such reasoning for the public at large.
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July 4th, 2007 at 1:13 pm
Great piece, Dr. Taylor. Mercury Rising cited the Cato Institute’s criticism of Bush, which included examples of far-harsher sentences that Bush hasn’t commuted. Happy fourth!
July 4th, 2007 at 11:26 pm
Your post leaves the direct impression that Federal Sentencing Guidelines are a creation of the Executive Branch. That is not the case at all. If you have problems with the system, as many people do, your anger should be directed at all three branches and not just the Executive. With respect to Texas, the Governor is limited to acting upon a recommendation for pardon/commutation that comes from the Board of Pardon and Parole, and does not have the absolute power that the President enjoys. So while describing Bush as reticent may be accurate, it is not accurate to create the impression that a Texas Governor has the same pardon authority as the President.
July 5th, 2007 at 8:12 am
The word “enforced” in regards to the DoJ was incorrect and I replaced it with “supported” otherwise. However, the point isn’t the origin of the guidelines as much as it is Bush’s support thereof.
And the bottom line with Texas is that Bush was reticent to use those powers.
July 5th, 2007 at 12:37 pm
[...] The Scooter Libby commutation sparked some discussion the other day about sentencing guidelines. Along those lines, we have Mercury Rising pointing to this Cato@Liberty post which, in turn, points to the Families Against Mandatory Minimums site. There are several examples of disproportionate mandatory sentences–this being a particularly good one. [...]
July 5th, 2007 at 12:37 pm
[...] The Scooter Libby commutation sparked some discussion the other day about sentencing guidelines. Along those lines, we have Mercury Rising pointing to this Cato@Liberty post which, in turn, points to the Families Against Mandatory Minimums site. There are several examples of disproportionate mandatory sentences–this being a particularly good one. [...]
July 5th, 2007 at 1:02 pm
ts:
For example:
Source: Slate.
The bottom line is that Bush’s commutation contradicts such a stance.