Real Libby Law Lessons

Nomi Prins

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.

Posted at 7:52 AM, Jul 15, 2007 in Criminal Justice | Government Accountability | Governmental Reform | Permalink | Comments (4)

Comments

Have I missed something? The guidelines are said, by the Supremes, to be advisory. While they advise federal judges on the factors to weigh & consider, judges have been freed for a moderate amount of time now from from their most binding effects. Do you think a Bush proposal to re-institute the mandatory character of the guidelines has a reasonable chance of adoption? Personally, I do not.

For my money, the key issue of the Libby-sentence-commutation is the unequal application of law. How can you explain to anyone the fairness of letting Libby loose to those incarcerated for comparable or more trivial offenses?

I agree that the mandatory sentencing guidelines, as they were employed, produced appalling results and encouraged judges and lawyers to engage in fictional fact finding to explain the results they sought. However, pre-guideline sentencing was fairly unfair too. As I dimly recall those long-ago days, when money talked, the rich and powerful walked.

Hi Daniel,

Thanx for your comment. Sentencing in general is such a complex topic, it's often hard to do justice (as it were) to the topic in 700 or so words....Where it is true, that judges have discretion under the minimum sentencing guidelines to go above or below the guidelines for specific cases, the fact is, they do not generally exercise that ability. The reasons vary per case, and obviously there are exceptions, but they range from judges being too overworked to review every detail of a person's background or character, or validity of a prosecution's case and methods to being more comfortable working within guidelines, thus the guidelines become an 'efficient' or even 'easy' way of sentencing.

Separately, they offer judges a compelling opportunity to stay within their boundaries by their mere existence - for a judge to go outside requires additional reasons as to the extenuating circumstances of a case, which then get put on the public record, which open the doors to more scrutiny than merely staying within the guidelines would. It's not to say, judges can't or don't go outside the guidelines, it's just that doing so, requires a particular kind of judge willing to do so, and therefore, infrequently gets done. This is not simply a matter of the justice system, but of the system of human nature.

I, like you, truly hope that Bush & Co. are not able to re-make these minimum guidelines mandatory. Mandatory guidelines can have devastating life-long consequences, and have so many components that are simply non-sensical, that they should be examined and changed, rather than re-adopted into being minimum guidelines.

For example, I witnessed the sentencing of a young black mother in Federal Court in Brooklyn. She was a licensed caretaker/home nurse for a couple of elderly people in her neighborhood, had worked at places like H&R block, and was going to school at night. The case against her - of conspiracy to traffic in drugs (she was in a car, with others, and the car contained crack)was based on circumstantial evidence and rats (for want of a better term) aiding the prosecution's case for their own plea-bargaining benefit. The jury, like the jury in 80% of the 4% of federal cases that make it to trial, (net of the 96% where the weight and fear factor of the federal government often cause people to plead out) convicted her. The mandatory minimum was 5 years. There was another charge for which an additional minimum guideline setence on top of that, being discussed. Now, any sane person with a beating heart should feel that 5 years in prison, away from your kids, job, elderly people who depend on you, and investment in your future for being in the wrong car at the wrong time is really the heinous crime in this scenario.

As for Libby, my point isn't that it was fair to let him loose and keep others with similar sentences in prison, but that the prison sentence to begin with, for him or anyone else, was not necessary. I don't condone Libby or his special treatment, I think it is unfair to all the others who didn't get that special treatment. But, that's why I'd rather focus on using Libby's special treatment to examine a system for which many people don't get special treatment and change it. If (in Utopia) the result of Libby's prison sentence commutation was that every other similar prison sentence was commuted, or better yet, we started to re-examine our zeal to incarcernate generally, his conviction would be used for a much better purpose, than merely complaining that it was unfair.

I agree with you that it is unfair for people with power and money to continue to get access to the possibility of better treatment in the penal system. But, I'd rather see the tides turned for those who don't have that luxury, than simply complain (and I wrote a whole book complaining about corporate corruption) about the ones that do.

Although perhaps too technical for some, those interested in attacks on the sentencing guidelines may want to read an interesting Scotus Blog post about Victor Rita (a defendant sentenced to 33 months for Libby-like offenses, who sported significantly longer and, in my view, more honorable public service than did Libby) which includes a link to the defense petition and attachments.

The 3rd Circuit Court of Appeals has recently held an aspect of the Guidelines which was reflected in statute to be binding, not advisory. In a ruling concerning mandatory minimum sentencing for crack as compared to cocaine, the appellate panel held that the 100-to-1 (crack to cocaine) ratio was statute-set and that using it was required. For those who haven't followed this incredibly technical but crucial debate, read through the court's opinion which contains a good review of the unreasonable character of the ratio. The irrational disparate racial outcomes of the ratio have made, in my view, a mockery of the phrase: "equal justice."