Thursday, July 5, 2007

Libby Pardon Fall-out

This reminds me a bit of when Apprendi, a significant Supreme Court sentencing case came out. The New York Times was going on and on about some mundane issue, while I remember thinking to myself, people outside the field of criminal law have no idea how big the Apprendi decision is.

I often tell non-lawyers that I have a 25-year lag theory regarding the public's knowledge of criminal procedure. The American man in the street still believes it is easy to "get off" by pleading insanity; he believes that all felons are out in 6 months; he believes that it is easy to get cases thrown out due to evidentiary loopholes and he believes that there is no system more fair than the American system of justice.

The Libby pardon proves the point. From their statements, neither Tony Snow nor the President have any understanding of how sentencing works under the federal guidelines, which have only been in existence now for 23 years. In spite of the recent Supreme Court Rita case, in which Bush's Justice Department argued against the very rationales (and won) Bush gave for commuting Libby's sentence, I believe that Bush's gaffe in this manner by not simply pardoning on grounds of mercy is going to sway a lot of judges, even though they may not admit it in court.

I think all throughout the media, we are seeing confusion as to the jury's role in federal sentencing, which is very different from most states. In some states, like Virginia, for example, juries may give sentence recommendations that may bind judges to some extent, but that is emphatically not the case in federal court.

Juries in federal court have nothing to do with sentencing. They don't recommend one and they have no idea what the sentences are likely to be. In fact, jurors often indicate that they would not have convicted had they known that the federal sentence was ten times what they had thought it would be.

The jurors vote up or down on individual counts, which assuming a conviction, are then put into a highly complex formula that attempts to set a monthly range for that defendant's sentence, based upon criminal history, acceptance of responsibility, level of culpability and at times, cooperation. In spite of its purported goal of making sentences fair for everyone, it only accomplishes this by making sentences draconian and restricting judges from lowering them, something Bush has promoted with more vigor than even Clinton or his father.

The issue thus, is the blatant hypocrisy, which given that Bush and his spokesman, Tony Snow seem oblivious to how the Guidelines work, could actually be nothing more than abject ignorance, if that makes those of you on the Right feel better about your President.

Ultimately, Bush articulated the very same reasons that criminal defense attorneys always elucidate on behalf of their defendants. While this may not carry a precedential force of law, it certainly may portend a turning point, as ideas cannot easily be bottled up once unleased.

Until about 2 years ago, the formula was basically automatic and unappealable. Judges have slightly more leeway now but the Bush administration and the Republicans have sought to restrict even that bit of leeway, thus resulting in the unassailable charge of hypocrisy against King George. Starting with Libby, things may now begin to change.

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