Real Libby Law Lessons
Pundits at both ends of the political spectrum seem to be caught up in the wrong discussion over President Bush’s commutation of “Scooter” Libby’s sentence, one that centers on abuse of power. One the right, the sentence was too harsh and politically motivated obviating the need for the commutation, on the left, there isn't any debate about the length of the sentence itself, but condemnation for its above-the-law 'commutator.' I think both are missing a wider point.
I’m not disputing the severity of the crime of which Libby was convicted, though I’d far rather have seen Bush and Cheney take the stand. But, another way to have punished Libby for impairing freedom of the press and compromising public transparency, for instance, would have been to make him a journalist’s intern - forever.
The very essence of debating whether Libby received a comparatively appropriate sentence or even whether this is yet another indication that felons with powerful friends get treated better than ones without any, presupposes that sentencing guidelines are themselves, sacrosanct. And they shouldn't be.
It’s guidelines like these that have spawned the more than tripling of today’s prison population versus that of 25 years ago, despite no such increase in the population, and propelled the stock price of Corrections, Corp. of America, the nation’s largest prison operator, to triple since 2004. Sentencing guidelines need to be modified - to protect the population during the moments when a presidential commutation won’t be happening.
A few years ago, I wrote a book about the culture of corruption spanning Washington, Wall Street and Big Business, Other
People’s Money: The Corporate Mugging of America. Then, as now, I made the point that prison terms, while certainly a punishment, don’t alter the system. Putting CEO’s or politicians in jail, doesn't change a loosely regulated corporate environment or a secretive power-hungry executive branch. Instead, they allow the American public to feel empty vindication in the absence of any true rehabilitation. It’s sleight of hand punishment.
Putting Libby in jail doesn't get us out of Iraq; not putting him in jail doesn't get us out of Iraq.
Last week, Utah Federal judge, Paul Cassell, testified against mandatory sentencing guidelines in Congress. To characterize the insanity of ‘one-size-fits-all’ justice, he drew from his own experience. He had to sentence a man to 55 years in prison for possessing a weapon during a few pot deals; a sentence, Cassell said, equivalent to one for severe crimes like hijacking an airplane, second-degree murder and rape.
In that context, Libby’s commutation was astounding to me. But not for the main reason that boils the blood of my progressive friends - that it’s one more indication of how President Bush considers himself above the law. We already know that.
More interesting is what the original sentence says about the justice system. Though not Bush's intention at all (clear from the pile of 2500 commutation and 1500 pardon requests sitting at the Department of Justice), Bush cast attention on minimum sentencing guidelines, the ones his administration has been working to make mandatory. The message behind Bush’s self-protective benevolence has validity despite its messenger and surrounding circumstances.
Congressional leaders, whatever their opinion on Libby, should address the fact that the White House has been pushing to make the minimum federal sentencing guidelines, mandatory. Many Democrats are against this action, and now, so it seems, are the Republicans who support Bush’s commutation of Libby.
There’s been a slew of press debate on comparatives for Libby’s sentence; from the right who consider it too strict to the left who consider it too lenient. Yet, the judge sentenced Libby within the minimum sentencing guidelines. If the guidelines had been 60 days to 5 years, Bush might have been commuting a 61 day sentence.
The problem with the guidelines is that their very existence sets up the framework for this debate. More generally, sentencing guidelines render individual judges harder pressed to exercise individual case discretion, even supposing that jury verdicts are accurate and truly unbiased for the general population. Judges must justify downward and upward departures, which requires more work and inherent reputation risk, conditions the guidelines allow them to avoid.
Perhaps, if Libby’s sentence wasn't levied relative to draconian sentencing guidelines, Libby wouldn't have received a 2.5 year prison sentence for a non-violent, first time offense to begin with (even if we condemn what he did). Then we would still be discussing the merits of its commutation, but at least anyone else facing similar prison time could be spared.