Monday, July 02, 2007

It's Not About Scooter; It's the Other Inmates

I'm possibly one of the few liberals who agrees with President Bush that "the prison sentence given to Mr. Libby is excessive." Two and a half years in prison is a lot of time for a non-violent crime. The problem is not Bush's decision to commute Libby's sentence; it's his failure to take similar action for the federal inmates serving still longer sentences for nonviolent offenses, especially drug offenses. It's also not obvious that Libby should do no time at all. In other words, Bush may have been right (inconsistency aside) to reduce Libby's prison time but wrong to reduce it to zero.

Of course there's another dimension to this case: the suspicion that the Libby commutation was a reward for his keeping the administration's secrets (thus far and into the future). But for that offense, Libby was only ever going to be the fall guy.

20 comments:

Creachter said...

I agree there's an issue regarding the fairness of commutations in non-violent law.

I'm also curious, though, about the President's power to commute a sentence. Iknew he had the power to pardon; I didn't know he held this leverage. No media source has explained that to me and, with all deference to your position, legal academics move at a glacial pace in responding. (I was going to say they move at a pace similar to hands of 14-year-olds on their first date -- but I'm much too classy.)

Creachter said...

I agree there's an issue regarding the fairness of commutations in non-violent law.

I'm also curious, though, about the President's power to commute a sentence. Iknew he had the power to pardon; I didn't know he held this leverage. No media source has explained that to me and, with all deference to your position, legal academics move at a glacial pace in responding. (I was going to say they move at a pace similar to hands of 14-year-olds on their first date -- but I'm much too classy.)

Michael C. Dorf said...

Numerous Supreme Court cases accept that the President has the power to commute a sentence. Although it is nowhere specifically mentioned in the Constitution, the power to commute a sentence is taken as implied by the pardon power and as an inherent aspect of executive power.

Adam P. said...

I agree that the sentence was too high for Libby, but I wonder what the standard we have for presidential pardons/commutations is. Do we think its only for those wrongfully convicted? those whose sentences are too long? Will this make the words "Mark Rich" disappear?

Ive also heard that since the sentence was commuted, the appeal is still live; I cant help but think this is strategic move. Bush wants his supreme court to hear the case itself (resolving the "serious constitutional questions" that the high-powered amici saw), but doesnt want Libby to ever step foot in a prison.

Finally, I think this should make it clear to the majority of America that the governing powers only care about injustice for the rich, white, and well-connected. The fact that the President thinks that Libby "still faces a harsh punishment", yet supports death, disenfranchisement, and long sentences for hundreds of thousands of Americans who never put the nation at risk makes that abundantly clear.

Benjam said...

michael- i agree that commutation is sensibly inferred as implied by the pardon power. but i dont understand what you mean when you say that the pardon power is accepted as "inherent to executive power." the president is equally bound by the doctrine of enumerated powers. the mere fact that something is "executive" doesnt make it a presidential power so i'm not getting something. i also wonder if the pardon and commutation powers of governors (past and present) are statutory or inferred by the state consitutions? amazing how much i dont know actually.

btw, what was your position on ollie north? under the guise of being a "good soldier" he knowingly broke the law and then took the fall for higher-ups. same story with libby. imho, if north didnt deserve a pardon, then libby didnt either. north's meddlings in central america were part of a larger american policy of supporting corrupt dictatorships and undermining popular resistence. scooter's maneuvers were part of a plan made by a small group of elites that unleashed the iraq cataclysm in all its horror. moreover, scooter was very, very close to the top of that pyramid. and beyond that, he continues to maintain the coverup. AND the commutation allows him to do it at no cost. i fail to see why anyopne would feel that the sentence was unjust.

J. R. Conner said...

(1) I agree with Dorf: Libby should have spent at least some time in the slammer to remind Scooter and everyone else that all are equal under the law.

(2) Since he wasn't pardoned, Libby can continue to appeal his conviction. That will keep him out of the witness chair in a Congressional hearing room as long as the appeal is in progress.

(3) Nothing in the Constitution precludes a pardon from following a commutation. Look for Scooter to receive his pardon minutes before GWB hands the keys to the White House to the next occupant.

egarber said...

A good blurb from a WAPO article yesterday:

Douglas A. Berman, a law professor at Ohio State University who is an expert on federal criminal sentencing policies, said it is "hypocritical and appalling from a president whose Justice Department is always fighting" attempts by judges and lawmakers to lower the punishment called for under federal sentencing guidelines. Berman said Bush's message amounted to "My friend Scooter shouldn't have to serve 30 months in prison because I don't want him to."

Michael C. Dorf said...

in response to benjam:

1) i did not say that i AGREE that there are inherent executive powers but that this is the accepted wisdom, and it's based at least in part on the difference between Art I ("All legislative powers herein granted shall be vested in a Congress") and Art II ("The executive power shall be vested in a President"), which indicates that the President has whatever powers are executive in nature, not just those enumerated.

2) The difference between Libby and North is that in North's case we pretty well knew what his underlying conduct was and it was a violation of the Boland Amendment, whereas in Libby's case it's not clear that he broke the law except in lying about what he did. Arguably that shouldn't matter because the reason we don't know what Libby did was that he lied about it, and so I understand how reasonable people could think that the 30-month sentence was fair. Maybe i'm just soft on crime.

BDG said...

Mike, is there an originalist/structural inferences argument that pardons and commutations of executive officials might be unconstitutional in some circumstances? (Okay, there is one, since I'm about to make it, but is it plausible?)

For example, when the Constitution was drafted and ratified, Presidents weren't term-limited. It therefore would have been reasonable to take the Paulsenesque view that the only limit on the President's pardon power was political. That is, a President who used the pardon power to shield those who committed wrongdoing in his name could be presumed to pay the price at the next election, even in the second term. The twenty-second amendment changes that analysis, though.

Couldn't we then suggest that the 22d Amendment also in effect curtails the pardon power? At a minimum, could we say that the 22d Amendment might permit Congress to remove pardon authority from the President in Libbyesque situations?

Benjam said...

something tells me libby KNEW he was breaking the law when he lied to investigators. i really dont think it makes a difference whether he has an "arguable" defense to the underlying crime.

but back to the inherent powers question: "all legislative powers" doesnt mean congress has every power that is legislative. it simply means only congress can legislate. why doesnt the same hold true for the executive power?

i'll try to find out how pardon powers histortically attach to governorships.

Tam said...

Some insist that Libby's eventual disbarment is a substantial punishment. But how? It's not like he was going to practice law, right? And even outside the practice of law, disbarment can have ramifications; it's been suggested to me that Bill Clinton's real punishment for Monicagate was that he'll never be a candidate for the Supreme Court, by virtue of his disbarment. But did Libby have any such or similar aspirations?

Otherwise, what practical impact would Libby's disbarment have?

Ricky said...

If Bush had said, "two and two are four, therefore I'm commuting Scooter's sentence," his reasons would be true but they wouldn't support his action. If this post was meant to imply that you believe that Bush commuted Scooter's sentence because the sentence was too harsh, you are probably the only person on Planet Earth with that belief.

Sobek said...

adam p. said: "I wonder what the standard we have for presidential pardons/commutations is."

There is virtually no standard -- the power is almost plenary, with only two limits: (1) the offence must be "against the United States" and (2) it cannot affect an impeachment process. The only other restriction is political.

benjam said: "the president is equally bound by the doctrine of enumerated powers."

Congress isn't exactly "bound" by any sort of enumerated powers doctrine, in the sense that the Commerce Clause covers essentially everything. Even on a restricted (i.e. sensible) view of Congressional power, however, that same restriction doesn't necessarily apply to the President, if for no other reason than because Article II doesn't really enumerate much in the way of powers anyway.

Prof. Dorf said, "...the Libby commutation was a reward for his keeping the administration's secrets..."

What secrets are you referring to? There is no real secret as to who "outed" Valerie Plame -- Richard Armitage admitted it. And there's no secret that Plame was a CIA agent -- otherwise Armitage would have been prosecuted. And there's no secret that at the time of Libby's supposed perjry, special prosecutor Patrick Fitzgerald already knew that Armitage was the "leaker," so it's also no secret that Fitzgerald was less interested in finding the leaker than he was with convicting Libby.

So where's the secret?

PG said...

Did Adam Liptak not call?

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